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HIGH COURT OF DELHI
JUDGMENT
JOINT COMMISSIONER OF POLICE ..... Petitioner
Through Mr. Naushad Ahmed Khan, ASC with Ms. Haney Wadhwa, Advocate
Through Mr. Arun Bhardwaj with Mr. A.Sriram, Mr. Mimansah Bhardwaj and
Mr. Nikhil Bhardwaj, Advocates
HON'BLE MR. JUSTICE VINOD GOEL G.S.SISTANI, J (ORAL)
1. Challenge in this writ petition is to the order dated 03.08.2006 passed by the Central Administrative Tribunal(hereinafter referred to for short as „the Tribunal‟), by which the OA filed by the respondent was allowed.
2. The respondent was working as ASI with Delhi Police. A complaint was received from many residents of Nangla Machi through Shri Raghubir Singh Kapoor, resident of 1178, Dev Ram Park, Tri Nagar, Delhi. In the complaint, it was stated that he had received a written complaint against the police officer ASI Sube Singh, who was posted in Police Station Parliament Street(Special Staff). It was stated in the complaint that Shri Nissar Ahmed was falsely implicated in a case by the respondent on instigation by one Shri Salajuddin. When nothing was recovered from Nissar Ahmed, his jhuggi was put on fire and he was taken to the Police 2016:DHC:7620-DB Station. Rs.2,000/- were accepted from his wife in the presence of Prabhu Dayal and others for release of her husband. The money was raised by the wife of Nissar Ahmed after pledging her ornaments.
3. An inquiry was conducted by the ACP Head Quarters, Vigilance which revealed that on 07.07.1991, the respondent along with other policemen conducted a search in the house of Nissar Ahmed. During the search of the said house, the lighting dibbi containing kerosene oil fell on the ground which resulted in fire in the jhuggi. Neighbours and other members of the locality extinguished the fire. Nissar Ahmed was whisked away by the respondent to Police Station Parliament Street. Prabhu Dayal and others reached the Police Station and contacted the respondent, who demanded a sum of Rs.10,000/- from them for release of Nissar Ahmed. Next day, his wife handed over Rs.2,000/- to the respondent after pledging her ornaments in the presence of Allah Bax, Bulaki and Prabhu Dayal. Despite the promise, Nissar Ahmed was not released. On 10.07.1991, the respondent concocted a story that he along with Constable Harminder Singh and Constable Phool Singh while on patrolling duty, received a secret information at the spot that one person would come from Yamuna side and go towards Nangla Machi with an illegal revolver in his possession. At 4:15 p.m., Nissar Ahmed was apprehended and a dessi katta(country made revolver) with two rounds was recovered. Resultantly, an FIR No.344/91 under Sections 25/54/59 under the Arms Act was registered at Police Station Tilak Marg. Keeping in view the gravity of mis-conduct, the respondent was dismissed from service under Article 311(2)(b) of the Constitution of India vide an order dated 08.05.1992.
4. Aggrieved with the decision of the Disciplinary Authority, the respondent Sube Singh, Constable Phool Singh and Constable Harminder preferred an OA No.1758/92 before the Tribunal. By an order dated 25.03.1998, the OA was disposed of. The following order was passed: “16…..we dispose of this O.A. with a direction that in the event applicants file an appeal against the impugned order dated 8.5.92 within two months from the date of receipt of this judgment, the delay in filing the same shall be condoned and the appellate authority will make a sincere and honest attempt to hold an enquiry in the manner prescribed by the rules, after affording full opportunity to the appellants to show that the charges against them are not true, and thereafter dispose of those appeals, in accordance with rules within four months from the date of their being filed.”
5. Pursuant to the orders passed by the Tribunal, an appeal was filed by the respondent. The Appellate Authority directed institution of a departmental inquiry under the provisions of Delhi Police(Punishment and Appeal) Rules, 1980. Primarily, three article of charges were framed against the respondent, which can be summarized as under: “(i) setting on fire the jhuggi of Nissar Ahmed;
(ii) demanding of Rs.10,000/- and accepting Rs.2,000/- for his release; and
(iii) false implication of Nissar Ahmed under Arms Act.”
6. It is not in dispute that the first two charges framed against the respondent were not proved. As far as the third charge is concerned, the third charge was proved. The Disciplinary Authority imposed a punishment of forfeiture of one year approved service permanently entailing reduction of his pay from Rs.4400/- to Rs.4300/- and the suspension and dismissal period was treated as not spent on duty. An appeal filed before the Joint Commissioner was rejected against which the second OA.No.1751/2000 was filed which was allowed by the Tribunal by an order dated 06.08.2001 holding that the Joint Commissioner is not a Authority mentioned in the Delhi Police Act and Rules.
7. The petitioner herein filed a writ petition in the High Court of Delhi assailing the order dated 06.08.2001 of the Tribunal which was allowed by the High Court and the matter was remanded back to the Tribunal for fresh consideration. After the matter was remanded back, the Tribunal allowed the OA by an order dated 28.11.2002 and directed the respondent(petitioner herein) to pass a fresh order. On 28.02.2003, the respondent (petitioner herein) imposed a punishment of forfeiture of one year approved service permanently entailing reduction in his pay from Rs.4400/- to Rs.4300/- and the suspension and dismissal period was to be treated as not spent on duty.
8. Aggrieved by the order passed by the Disciplinary Authority, an appeal was filed by the respondent before the Appellate Authority which was rejected. Resultantly, the third OA No.779/2004 was filed. The Tribunal has allowed the OA by an order dated 03.08.2006. The reasons of the Tribunal for allowing the OA finds mentioned in the following paragraphs of the order passed by the Tribunal:
9. After reaching the conclusion that the charge with regard to falsely implicating Nissar Ahmed not having been proved, to balance the equities, the Tribunal directed the petitioner herein to pay 50% of the salary of the respondent for the period 08.06.1992 to 16.07.1998. So far as the period of suspension is concerned, since the respondent was subsequently reinstated, the Tribunal observed that he was entitled to full salary for the period 16.07.1998 to 19.08.1999 after deducting the suspension allowance, if paid to the respondent. Aggrieved by this order of the Tribunal has led to the filing of the present petition.
10. In this backdrop, Mr. Khan learned counsel for the petitioner submits that the Tribunal has failed to take into consideration the evidence of material witnesses. The Tribunal has failed to take into consideration that Nissar Ahmed was in fact falsely implicated by the respondent herein. Mr. Khan further submits that although Nissar Ahmed was finally acquitted by the Sessions Court, implicating an innocent person in a false case is a serious matter and thus, the Tribunal has erred in modifying the order of punishment. Counsel further submits that there is substantial evidence on record to show that not only Nissar Ahmed was falsely implicated, he was arrested. The respondent asked the wife of Nissar Ahmed for bribe of Rs.10,000/-, out of which Rs.2,000/- was paid after his wife was forced to pledge her ornaments. Counsel further submits that the Court should take judicial notice of the fact that since the respondent was an ASI, nobody was willing to depose against him and thus, the Tribunal erred in modifying the order of the punishment.
11. Mr. Arun Bhardwaj, learned counsel for the respondent submits that the petitioner has failed to show any cogent reasons which would require interference in proceeding under Article 226 of the Constitution of India by this Court. Learned counsel further submits that in the absence of any evidence on record, the charge with regard to demanding bribe and putting the jhuggi of Nissar Ahmed on fire was not proved as per the findings of the enquiry officer. He further submits that the charge with regard to false implication has also not been proved as rightly held by the Tribunal. Mr. Bhardwaj also submits that it is not in dispute that the Sessions Court although acquitted Nissar Ahmed, but neither any strictures were passed against the respondent nor the Sessions Court acquitted him for want of evidence but acquitted him on account of benefit of doubt.
12. We have heard the learned counsel for the parties. The basic facts which have been narrated in the paragraphs aforegoing are not in dispute. The respondent retired on 28.02.2007, after which he has been regularly drawing the pension. The Tribunal has allowed the OA on the ground, firstly, that on account of inadvertent error, the name of Nissar Ahmed had been shown in place of Krishan Kumar in DD entry no.31. The Tribunal took into account that three DD entries had been placed on record on 10.07.1991. DD no.31 reflected that Nissar Ahmed was produced before the Court at 12:30 noon, however, as per the DD entry no.33, Krishan Kumar was produced on that day at 12:30 noon and not Nissar Ahmed. It was only Krishan Kumar who was produced before the Court on 10.07.1991 at 12:30 noon. Thus, it can safely be said that it was Krishan Kumar and not Nissar Ahmed who was produced before the Court at 12:30 noon and it was a clerical error. We may also notice that the Tribunal has also taken into account that the recovery of arms could not be proved by the independent witnesses Puran and Siya Ram as they did not appear before the Court despite notice having been served on them. During the course of hearing, we have asked the learned counsel for the petitioner as to why in case Puran and Siya Ram did not appear before the Court, their statement recorded earlier was not produced, to which there is no answer. Having said so, we find that there is no infirmity in the order of the Tribunal except that in the facts and circumstances of this case, we are of the considered view that the respondent is not entitled to 50% of the salary for the period 08.06.1992 to 16.07.1998 nor he is entitled to salary for the period 16.07.1998 to 19.08.1999 except the suspension allowance which stands paid to him. Thus, with the consent of counsel for the respondent, we modify the order of the Tribunal dated 03.08.2006 to this extent only. However, the period of 08.06.1992 to 16.07.1998 shall be treated as a period spent on duty for other purposes, including pensionary benefit. He will be entitled to increments post 16.07.1998 to 19.08.1999 notionally.
13. The petition stands disposed of in above terms. G.S.SISTANI, J VINOD GOEL, J NOVEMBER 23, 2016 pst