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Judgment
We have heard Mr. Nilansh Gaur, counsel for applicant and Mr. Vijay Kumar Pandita, counsel for respondents, perused the pleadings and all the documents produced by both the parties.
In this OA, the applicant has prayed for the following reliefs:
"8.1. Quash and set aside the impugned orders at Annexure A-1 to Annexure A-5 and to direct the respondents as a consequence to restore all consequential benefits to the applicant;
"8.2. Direct the respondents to remove the name of the applicant from the Secret List of officers of Doubtful Integrity with immediate effect; and
8.3. Any other relief which this Hon'ble Tribunal may deem fit and appropriate, in the circumstances of the case."
The relevant facts of the case are that a summary of allegation was issued to the applicant for failing to submit final LTC claim within 10 days from the date of return journey for settlement and for non settling the leave encashment taken with respect to 10 days as per the LTC rules and for absenting himself from duty for 16 days 02 hours and 40 minutes. The detailed summary of allegation is extracted below:
"...........It is alleged against HC (Min.) Krishna No. 2034/DAP (PIS No. 27979109) that on 06/09/2013, while posted in Character Roll Branch, 3rd Bn. DAP, he submitted his LTC advance claim in Accounts Branch /3rd Bn.DAP vide Diary No. 10163 /Acctt. /3rd Bn. DAP. In his claim, he mentioned that he wants to visit Srinagar (J&K) with his wife, son, daughter, father and mother on 21.10.13. As per rules he was sanctioned 90% LTC advance amounting to Rs.97,000/-for the block year 2010-2013 (All India Tour) vide order No. 3716-18/Acctt./3rd Bn.DAP dated 12.09.2013. The advance was drawn vide bill No. 1401 dated 13.09.13 and credited at his Axis Bank Account on 18.09.13. As per rule and direction contained in the above said order dated 12/09/13. He was required to submit his final LT claim within 10 days from the date of return journey for settlement, but he did not settle his claim till date.
It is further alleged against HC(Min.) Krishna, No. 2034/DAP that, on 03.09.2013, he submitted an application for 10 days leave encashment as per LTC Rules and the same was sanctioned vide order No. 5510-14/CR-II/3rd Bn. DAP, dated 10.09.2013. Accordingly, a sum of Rs. 7,974/- were credited into his saving account on 18.09.2013 vide Bill No. 1396. Since, he failed to settle the LTC claim within stipulated period the sanction of 10 days leave encashment was cancelled vide order No. 876-879/CR-II/3rd Bn. DAP, dated 12.02.2014.
It is further alleged against HC (Min.) Krishna No. 2034/DAP that he was transferred from 3rd Bn. DAP to East Distt., Delhi vide PHQ's order No. 327-72/Estt(IV)/PHQ dated 08.01.2014 but not relieved. Meanwhile, he proceeded on 12 days earned leave w.e.f. 27.01.2014 with permission to avail Saturday and Sunday dated 08.02.2014 and 09.02.2014. After availing E/L, he was supposed to report for duty on 10.02.2014 in 3rd Bn. DAP, but he did not turn up. Thus, he was marked absent vide DD No. 48-B/VPL, 3rd Bn. DAP, dated 10.02.2014. An absentee notice was sent at his residence by deputing a special messenger vide No. 3443-45/Estt/3rd Bn. DAP, dated 12.02.2014. He acknowledged the absentee notice putting his remarks that he has resumed his duty in East Distt. On 10.02.2014, whereas he was not actually relieved from 3rd Bn. DAP. Subsequently, a letter with actual facts was also written to DCP/East Distt. Vide memo. No. 937/CR-1/3rd Bn. DAP, dated 18.02.2014. In turn, the DCP/East Distt. Intimated through WTM No. 4712/Estt/E-1/ED, dated 25/02/14 that HC (Min) Krishna, No. 2034/DAP has been relieved from East Distt. on 24.02.2014 with the direction to report in 3rd Bn. DAP, Delhi. He, however, reported back in 3rd Bn. DAP vide DD No. 49-B/VPL dated 26.02.2014 after absenting himself for a period of 16 days 02 hours and 40 minutes HC (Min) Krishna No. 2034/DAP without any relieving orders of the competent authority reported in East Distt. at his own will, which amounts to gross indiscipline."
Alongwith the summary of allegation, list of relied upon documents, and list of witnesses were served on the applicant. As the applicant did not admit the allegation, an Inquiry Officer was appointed. The Inquiry Officer following the principles of natural justice and also the relevant rules regarding conducting of the departmental enquiry, examined PW1 to PW5 and DW-1 & DW2 and he also examined one court witness(CW-1) and taking into consideration the defence raised by the applicant and after discussing the entire evidence, came to the conclusion that charge no.2 was proved in all respects and charge no. 1 and 3 were proved partially vide his inquiry report dated 13.11.2014. The disciplinary authority after examining the inquiry report issued a disagreement note tentatively holding that charge no. 1 and 3, in view of the evidence on record of PW-1, 3 and 5 read with the deposition of court witnesses, are also clearly proved and he served the inquiry report as well as disagreement note on the applicant giving him an opportunity to file representation against them within 15 days vide order dated 16.04.2015.
The relevant portions of the disagreement note are reproduced below:-
"The undersigned has carefully gone through the entire DE file containing deposition of PWs /DWs /CW, Exhibits, defence statement of the defaulter HC (Min) as well as finding of the E.O. Tentatively, I do not agree with the conclusion drawn by the E.O. in his finding. Basically, the defaulter HC (Min.) was charged with for not settling the LTC advance drawn by him, drawn 10 days leave encashment and he reported in East Distt. on his transfer without any written orders. The evidence in shape of depositions of PW-1, PW-3 and PW-5 read with deposition of sole court witness as well as Exhibits PW-1/A, PW-2/E, PW-3/A and PW-5/A has clearly proved the charge in totally against the HC (Min.).
Therefore, in view of Rule-16 (xii)(a) of the Delhi Police (Punishment & Appeal) Rules, 1980, the finding of the E.O. together with above note of disagreement is being served upon HC (Min.) Krishna No. 2034/DAP. He may submit his final written representation against it within 15 days from the date of its receipt, if he so desire, failing which it will be presumed that he has nothing to say in his defence and the D.E. will be decided on merits."
The applicant filed his representation against both the disagreement note as well as the inquiry report and the disciplinary authority considering the entire material and also the grounds raised in the representation of the applicant referred to above and also hearing the applicant in orderly room on 06.05.2015 imposed a penalty of forfeiture of one year approved service temporarily for a period of one year vide order dated 12.05.2015.
The appeal filed by the applicant was also dismissed by the appellate authority after considering all the material including the points raised by the applicant in his appeal and also hearing him in the orderly room on 8.12.2015 vide order dated 10.12.2015.
The counsel for the applicant vehemently and strenuously contended that disagreement note is not at all a disagreement note in the eyes of law as it does not deal specifically with the statement and aspects recorded by the inquiry officer and does not give any reason for disagreeing with those specific statements and aspects, and that the disciplinary authority had already pre- determined that the allegations were proved before issuing the disagreement note and as such the disagreement note requires to be set aside. He further submitted that the orders passed by the disciplinary authority as well as the appellate authority are perverse and have been passed without application of mind to the facts of the case. In support of his contention, counsel for applicant has relied upon the law laid down by the Hon'ble Supreme Court in the case of Yoginath D.Bagde Vs. State of Maharashtra & Anr, reported in (1999) 7 SCC 739).
Counsel for the respondents equally vehemently and rightly submitted that the disagreement note is legally valid and it is as per Rule 16(xii)(a) of the Delhi Police (Punishment & Appeal) Rules, 1980 and that no prejudice is caused to the applicant by issuing such disagreement note and that the applicant was given reasonable opportunity of 15 days to make his representation on the said disagreement note and he has further taken us through the orders passed by the disciplinary authority and the appellate authority to demonstrate that they are well considered reasoned orders passed after proper application of mind by the respective authorities. He has taken us through the following paras of the order of the Disciplinary authority dated 12.05.2015.
"The undersigned has carefully gone through the entire DE file containing deposition of PWs/DWs/CW, Exhibits, defence statement of the defaulter as well as finding of the E.O. and did not agree with the conclusion drawn by the E.O. as deposition of PW-1, PW-3 and PW-5 read with deposition of sole court witness as well as Exhibits PW-1/A, PW-2/E, PW-3/A and PW-5/A have clearly proved the charge in totality against the defaulter. Hence the finding of the E.O together with above contents of disagreement note was served upon the defaulter on 17.04.2015 vide U.O.No. 4309/HAP(P-II)/III Bn.DAP, dated 16/04/2015 in accordance with Rule-16(XII)(a) for seeking his final written representation within 15 days from the date of receipt of finding.
He submitted his representation against the finding of the E.O/ dissent note on 27.04.2015. In his representation against the finding of the EO, he has admitted that he was got sanctioned LTC advance worth Rs.97,000/- and 10 days leave encashment amounting to Rs.7974/- for his proposed LTC Tour to Jammu & Kashmir which was spent on for a purpose other than the purpose it was sanctioned. He has also admitted that he has deposited the LTC advance in full on 19.08.2014. As regards his joining in East District without any relieving order of the competent authority of 3rd Bn. DAP, he has pleaded that he has reported in East District on the verbal direction of the HACR/3rd Bn. DAP.
I have carefully gone through the depositions made by the PWs as well as relied upon documentary evidence brought during the DE proceeding and the pleas advance by the defaulter in his final written representation. The defaulter HC (Min.) has already admitted in his final written representation against the finding/dissent note that he was got sanctioned LTC advance worth Rs.97,000/- and 10 days leave encashment amounting Rs.7974/ for his proposed LTC tour to Jammu & Kashmir which was spent on for a purpose other than the purpose it was sanctioned. In fact, he was duty bound to settle the claim within 30 days from the date of return journey. In case he did not perform the proposed visit, he should have deposit the advance drawn in the context immediately but he did so only when the departmental action was initiated against him. His plea that he joined duty in East District on the verbal direction of HACR/3rd Bn. DAP is not tenable as there was no direction given to him in writing by the department to report to his new place of posting i.e. East Distt. after availing EL of 12 days. PW-1, SI (Min) Chander Prakash, the then HACR/3rd Bn. DAP has clearly deposed that the defaulter had joined in East District at his own.
The basic charge against the defaulter HC(Min) is that he was sanctioned 90% LTC advance amounting Rs.97,000/- for his purposed LTC Tour to Jammu & Kashmir and secondly, he joined East District without relieving order of the competent authority. During departmental enquiry 05 PWs, 2 DWs and 1 CW were examined. PW-1 & 2 who deposed that the defaulter after availing 12+2 days E.L. did not resume duty on 10.02.2014 in III Bn.DAP rather joined East Distt. without any relieving order of the competent authority. PW-3 deposited that Rs.97,000/- was sanctioned to the defaulter HC (Min.) as LTC advance for J & K Tour by Air vide Bill No. 1401 cash on 18.09.2013 which was got exhibited as Exhbt. PW-3/A and the same was to be adjusted after performing journey but could not be adjusted even after expiry of three months. PW-4 deposed that he conducted the Preliminary Enquiry and got the enquiry report exhibit as Exhbt. PW-4/A, PW-5 deposed that 10 days Leave encashment of Rs.7974/- was sanctioned to the defaulter vide bill NO. 1396 but the same was cancelled as he did not submit the LTC claim.
From the overall facts and circumstances of the case, it is clearly proved that defaulter has failed to submit his final LTC claim within 30 days from the date of return journey as he was sanctioned 90% LTC advance for the block year 2010-2013 (All India Tour) vide bill No. 1401 cash on 18.09.2013. It is also proved that he was required to report for duty on 10.02.2014 after availing 12 days Earned leave with permission to avail Saturday and Sunday dated 08.02.2014 & 09.02.2014 but he did not turn up and joined his duty on his own in East Distt.without the relieving orders of the competent authority.
Moreover, it was the prime duty of the defaulter to return the LTC advance as well as Leave encashment which was drawn by him, if he did not perform the LTC Tour. Besides, he should have joined in East District only after relieving order of the competent authority but he joined East District at his own will. Further, he was sent back to 3rd Bn. DAP by East District on 24.02.2014 but reported in 3rd Bn. DAP on 26.02.2014 i.e. after a gap of one day for which he has not given any explanation. He was also called and heard in OR held on 06.05.2015. During OR he accepted his mistake. Therefore, keeping in mind all the facts of the case, evidence brought on DE file as well as above detailed discussion, I S.K.Tewari, Deputy Commissioner Police/3rd Bn.DAP, New Delhi hereby impose the punishment of forfeiture of one year approved service temporarily for a period of one year entailing proportionate reduction in the pay upon Head Constable (Min.) Krishna No.2034/DAP (now 7002/DAP) with immediate effect. He was relieved from East District on 24.02.2014 but joined in 3rd Bn.DAP on 26.02.2015. Hence, his one day absence of 25.02.2014 is also decided as period spent on duty which may not be regularized in any manner."
Similarly the counsel for respondents took us through the following paragraphs of the appellate authority order dated 10.12.2015.
"The appellant in his appeal has mainly pleaded that (i) the disciplinary authority has served disagreement note to the appellant without any reason, (ii) he could not deposit LTC advance of Rs.97,000/- as he had spent some part of the said amount for the treatment of the wife of his brother-in-law. However, the appellant had managed the amount and deposited the same with penal interest to the department on 19.8.2014 vide Bill No. 58, (iii) he was under transfer. He had reported in East District because HACR/3rd Bn. DAP had asked him through mobile phone of Ct. Rajender Singh of HACR Branch, to report in East Distt. After availing leave, (iv) he had performed duty in East Distt. and when he was called back by HACR/3rd Bn. DAP vide memo dated 18.2.2014, he reported in 3rd Bn. DAP, (v) he has requested to set aside the punishment.
I have carefully gone through the appeal, impugned order dated 12.5.2015 and all the relevant material available on the record. I have also heard the appellant in the Orderly Room on 8.12.2015. During the Orderly Room, he has reiterated the pleas already raised in his appeal. The contentions of the appellant are devoid of merit. During the DE proceedings, SI (Min) Chander Prakash, (PW-1), HC (Min) Rampal, (PW-3), W/HC (Min) Munesh Devi (PW-5) and Court Witness SI (Min) Mukesh (Accountant/3rd Bn) have proved the charges leveled against the appellant. It is a matter of record that the appellant had withdrawn LTC advance of Rs.97,000/-and leave encashment of Rs.7,974/- for his proposed LTC Tour to J&K but he did not settle his claim after returning from journey. He was required to submit his final claim of LTC within 30 days from the date of return of journey, but he failed to do so. Moreover, he did not inform the department that whether he availed the LTC tour, he should have returned the LTC advance and leave encashment which he ha drawn from the department within 30 days. But he did not do so even after expiry of three months.
The plea of the appellant that he was under transfer to East Distt. He had reported in East District because HACR/3rd Bn. DAP asked him through the mobile phone of CT. Rajender to report to East District is not maintainable and after thought as he has not submitted any documentary evidence in support of his claim. Besides, during the DE proceedings, SI (Min) Chander Prakash (PW-1) has already deposed that he was not relieved from 3rd Bn. to East District. He was marked absent on 10.2.2014 vide 48B as he did not join his duty after expiry of leave rather reported in East Distt. at his own. Besides, during the DE proceeding, Const. Rajender Singh, the Defence Witness produced by the appellant has clearly stated that although SI Chander Prakash (I/C HACR) made a call from his mobile phone to the appellant but he does not know the details of telephones conversation which had taken place between the appellant and the SI. The disciplinary authority has awarded the punishment to the appellant after considering all facts and circumstances of the case and his representation. Keeping in view of the facts of the case and the material available on record in the file, I do not find any reason to interfere with the impugned orders. The appeal, is accordingly, rejected."
In view of the above submissions of the counsel for the respondents and in view of the extracted portion of the orders referred to above, the law laid down by the Hon'ble Supreme Court in the case of Yoginath D.Bagde (supra) referred to by the counsel for the applicant referred to above is not applicable as the facts and circumstances are different.
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 influence 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 narrated above and in view of the extracted portion of the orders referred to above and in view of the law laid down by Hon'ble Apex Court referred to above and in view of the fact that in spite of repeated query the counsel for the applicant could not state violation of any specific rules regarding holding of departmental enquiry or principles of natural justice, the OA requires to be dismissed.
Accordingly, the OA is dismissed. No order as to costs.