Shishu Pal vs Govt. Of NCTD And Ors

K.N. Shrivastava, Member (A)

Through the medium of this O.A. filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has prayed for the following main reliefs:-

"i) To set aside the impugned order dated 9.3.11 whereby the major punishment i.e. forfeiture of one year approved service permanently entailing proportionate reduction in his pay from Rs.7510+2400/- to Rs.7220+2400/- with immediate effect is imposed upon the applicant and further the recovery of the misappropriated stationery articles amounting to Rs.1,05,173 will be recovered from the salary of the applicant at A- , and other 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- 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 and further the amount of recovery deducted from the salary of applicant in pursuance of order dated 9.3.11 be given to applicant forthwith.

ii) To set aside the order dated 19.6.09 whereby the D.E. was withdrawn on administrative ground.

iii) To set aside the order dated 19.6.09 whereby the D.E. was initiated against the applicant.

iv) That the applicant be restored with the entire amount that is being recovered from the applicant in pursuance of order of Disciplinary Authority dated 9.3.11.

v) To set aside the finding of enquiry officer."

The factual matrix of the case, as noticed from the records, is as under:-

2.1 The applicant is working as Head Constable (Ministerial) in Delhi Police. On 03.03.2009, the disciplinary authority, namely, Additional Deputy Commissioner of Police-I, Outer District, Delhi issued the order (Annexure A-13), whereby charges of irregularities in procuring the standard stationery items were leveled against the applicant. The gist of the mcharges, as culled out from Annexure A-13, is as follows:-

"The bills for stationary were submitted by the firm on 23.05.08 for payment but as the entries in respect of supply of articles were not mentioned in the stock register, ASI Tej Parkash No.1381/D the present Incharge asked the firm for supply of articles. In return, the firm intimated that the articles have already been supplied and delivered to HC Shishu Pal No.5/OD against his proper receipt on various dates i.e. 22.10.07, 4.01.08, 14.01.08, 24.01.08, 31.01.08, 6.02.08, 18.02.08.

HC Shishu Pal No.5/OD who was Incharge stationery items of Outer Distt. and he had received stationary items in question supplied by the firm during the period from 19.10.07 to 18.02.08 as per vouchers of the firm. Neither entries in respect of receipt of items supplied by the firm nor in respect of distribution of articles/items in question is available on record nor the said article were handed over to his successor as Incharge stationary by HC Shishu Pal No.5/OD. As such the items in question have been misappropriated by HC Shishu Pal No.5/OD."

The said order also stated that Inspector Pawan Singh Rana has been appointed to enquire the charges against the applicant.

2.2 The Annexure A-13 order was withdrawn by the disciplinary authority vide its Annexure A-5 order dated 19.06.2009 on administrative grounds but without seeking a liberty to initiate afresh or take any action in relation to the same cause of action. However, on the same day, an order dated 19.06.2009 came to be issued by the disciplinary authority reiterating the same charges that were mentioned in Annexure A-13 order dated 03.03.2009.

2.3 Pursuant to the Annexure A-5 order, the enquiry proceedings were held by the enquiry officer (EO), namely, Inspector Pawan Singh Rana, in which the applicant participated. The EO, in his report, concluded that the charges against the applicant stand proved. The relevant portion of EO"s report is extracted below:-

"Conclusion

After carefully going through the statement of the PWs and evidence on record and in view of the above discussion, I am of the opinion that the charge framed against HC (Min.) Shishu Pal No.5/OD stands proved without any shadow of doubt."

A copy of the EO"s report, together with the covering note dated 29.06.2010 (Annexure A-4), was served upon the applicant for his representation against it.

2.4 The applicant, vide his Annexure A-8 letter dated 14.01.2011, submitted a detailed representation against the findings of the EO.

2.5 Not satisfied with the representation of the applicant against the EO"s report, the disciplinary authority, vide its Annexure A-2 order dated 09.03.2011, imposed the penalty of „forfeiture of one year approved service permanently entailing reduction in his pay from `7510 + 2400/- to `7220 + 2400/-' upon the applicant. The Annexure A-2 order further directed recovery of `1,05,173/- towards the cost of the misappropriated stationery articles from the salary of the applicant in monthly installments.

2.6 Aggrieved by the impugned order of Annexure A-2 passed by the disciplinary authority, the applicant preferred an appeal before the departmental appellate authority, namely, the Joint Commissioner of Police, Northern Range, Delhi, who, vide his Annexure A-3 order dated 12.10.2012, dismissed the appeal and re-affirmed the order of the disciplinary authority.

Aggrieved by the Annexures A-2 & A-3 orders passed by the disciplinary authority and appellate authority, the applicant has filed the instant O.A. praying for the reliefs as indicated in paragraph (1) above.

Pursuant to the notices issued, the respondents entered appearance and have filed their reply, to which the applicant has filed rejoinder.

With the completion of pleadings, the case was taken up for hearing the arguments of learned counsel for the parties. Arguments of Mr. Sachin Chauhan, learned counsel for applicant and Mrs. Sumedha Sharma, learned counsel for respondents were heard.

The gist of the arguments of Mr. Sachin Chauhan, learned counsel for applicant is as under:-

a) It was standard practice followed in the Outer District that only after the receipt of the bills, the stationery items supplied by the suppliers were being entered into the main register. In this regard, he has referred to the deposition of Mr. Rajender Singh (PW-3), who was then posted in the General Branch, Outer District, who, in his cross examination, has stated that no entry could be made in the register without the receipt of the bills and articles, but the entry could be made in a separate register to remember and to handover the same to the successor on transfer.

b) Annexure A-20 is kachha noting in respect of certain materials received on 25.04.2008, which could not be entered in the register, as the bills of these items had not been received from the suppliers.

c) The Outer District was created recently then and the procurement procedures were not laid down.

d) The applicant could not cross examine Lokesh Kumar (PW-5), who was then working in the office of stationery supplier, M/s. Vijay Stationery Mart No.18 No. Palika Palace Annexe, Panchkuian Road, New Delhi, as he was still awaiting response to his representation dated 03.09.2009 addressed to EO, wherein he had stated that the departmental enquiry (DE) proceedings may be kept in abeyance till his representation dated 20.07.2009 to the disciplinary authority, seeking cancellation / dropping of DE proceedings on certain technical grounds, is disposed of by it.

e) The applicant did not participate in the DE proceedings initially for some dates, for which Annexure A-14 show cause notice dated 22.09.2009 was issued, to which he replied vide his Annexure A-18 letter. However, the disciplinary authority imposed the penalty of „censure" on the applicant for the charge of not attending the DE proceedings on some dates. This action of the disciplinary authority was highly illegal and has been challenged by the applicant in a separate O.A. before this Tribunal.

During the course of his arguments, Mr. Chauhan raised certain law points. He stated that in terms of Government of India instruction No.9 under Rule 15 of CCS (CCA) Rules, 1965, reasons for cancellation of original charge sheet are required to be mentioned, whereas in Annexure A-1 order dated 19.06.2009, no reason is mentioned with regard to withdrawal of Annexure A-13 order dated 03.03.2009, except cryptically mentioning that the order has been withdrawn on administrative grounds without prejudice to the action to be taken against the applicant later on. He submitted that Annexure A-1 order is in contravention with the said instructions of Government of India.

Mr. Chauhan further submitted that the instructions contained in Government of India instruction No.9 under Rule 15 of CCS (CCA) Rules have been circulated to all the police officers by the Deputy Commissioner of Police (Vigilance), New Delhi by circular dated 28.04.1993 (Annexure A-7-A).

Mr. Chauhan also drew our attention to the judgment of this Tribunal in Amar Chand & others v. Jt. Commissioner of Police & others, 2003 (3) AISLJ (CAT) 448, wherein it has been observed as under:-

"10. The first and the crucial main ground pressed by the learned Counsel for the applicant, Shri Shyam Babu, is that the fresh departmental enquiry is illegal since it is violative of the respondent"s own circular dated 28.04.1993 (Annexure F). He submitted that the show cause notice dated 4.4.1997 (Annexure C) issued against the applicants initially was withdrawn by the Respondent by their order dated 8.10.1997 (Annexure E) on alleged administrative grounds. He contended that since no reasons for such withdrawal were given and no right was reserved for re -starting the enquiry, the action of the respondents in initiating a fresh enquiry by their order dated 10.10.1997 (Annexure G) is barred under the said circular. He has also relied strongly on an order of this Tribunal (PB) dated 31.1.1992 in OA 602/99 (Inspector Harbhajan Singh v. Commissioner of Police and Ors.) in this connection."

Mr. Chauhan further argued that the Tribunal in Ganesh Prasad v. Govt. of NCT of Delhi & others (O.A. No.2534/2005) decided on 13.12.2006, has held as under:-

"27. Taking the totality of the facts and circumstances into consideration, we are in a respectful agreement with the decision of the coordinate bench of this Tribunal in the case of Amar Chand & Ors. v. Jt. Commissioner of Police & Ors. (supra) that the departmental enquiry conducted against the applicant after withdrawing the show cause notice without giving specific reasons has prejudiced the defence of the applicant and is patently violative of the provisions of the aforementioned GOI instruction No. (9) below Rule 15 of the CCS (CCA) Rules, 1965, which have been made applicable to the .....Delhi Police (Punishment and Appeal) Rules, 1980 by the respondent"s own circular dated 28.04.1993 noted earlier. Such an action is not sustainable under the law."

Summarizing his arguments, Mr. Chauhan submitted that new charge memo could not have been issued to the applicant for the same charge; the applicant has not committed any misconduct and that he was following the existing procedures in the matter of procurement of standard stationery items, and that the PWs, who have deposed against him, were also interested witnesses since, by implicating the applicant, they were trying to save their own skin.

Per contra, Mrs. Sumedha Sharma, learned counsel for respondents submitted that the Annexure A-13 order dated 03.03.2009 was withdrawn by the respondents for a technical reason. She said that in terms of Rule 15 (2) of Delhi Police (Punishment & Appeal) Rules, 1980, prior approval of Joint Commissioner of Police was required to be obtained before initiating the DE proceedings against the applicant. Since Annexure A-13 order was issued without such approval, the respondents considered it prudent to withdraw it and accordingly Annexure A-1 order dated 19.06.2009 was issued, in which it is clearly mentioned that the order dated 03.03.2009 was being withdrawn on administrative grounds.

The learned counsel submitted that from the deposition of PW-5 Lokesh Kumar, representative of stationary supplier, M/s. Vijay Stationery Mart No.18 No. Palika Palace Annexe, Panchkuian Road, New Delhi, it is abundantly clear that the said firm had supplied several articles of stationery through as many as 11 bills but the stationery items have not been accounted for by the applicant. Thus, the applicant"s misdemeanor is clearly established.

We have considered the arguments of learned counsel for the parties and perused the pleadings.

The scope of judicial review in the matter of DE proceedings is highly limited. Judicial review is normally resorted to only in following circumstances:

(a) Principles of natural justice have not been followed in the conduct of DE proceedings,

(b) Incompetent authorities have issued the charge memorandum and passed the penalty orders,

(c) The penalty orders have been passed in violation of relevant laws/rules; and

(d) The punishment inflicted is disproportionate to the offence committed.

The above principles have been enshrined in the following judgments of Hon"ble Supreme Court:

(i) Union of India v. P. Gunasekaran,(2015) 2 SCC 610

(ii) Ranjit Thakur v. Union of India & others, (1987) 4 SCC 611; and

(iii) Kuldeep Singh v. Commissioner of Police & others, JT 1998 (8) SC 603.

In the instant case, we notice that shortfall in the stock of stationery items procured has been fully established during the course of enquiry. The EO, after going through the documents and assessing the evidences of the witnesses, has come to the conclusion that the charge against the applicant has been proved. We also notice that the enquiry has been conducted as per the prescribed procedures and principles of natural justice have been observed at every stage. The punishment imposed on the applicant is not at all disproportionate to the charge proved against him.

In the conspectus, we do not find any merit in this O.A. and accordingly, it is dismissed. No order as to costs.