ORDER
V.K. Bali, J. (Chairman)
1. Spanned over a period of eight years, this case has rather a chequered history, even though at this stage, the only plea raised by the applicants while calling in question order dated 23.10.2006 rejecting their representation for recalling orders passed in 1999 and 2000 by the disciplinary and appellate authorities, is discrimination. Shri Shyam Babu, the Learned Counsel representing the applicants, vehemently contends that with regard to incident that occurred in the intervening night of 23/24.11.1998, all the delinquents, whether belonging to the Police Station staff or PCR staff, have been exonerated in the regular departmental proceedings held against them, but for the applicants who have been visited with the penalty of forfeiture of four years’ approved service permanently resulting into reduction in the time scale of pay. Shri Ajesh Luthra, Learned Counsel representing the respondents, on the other hand, would contend that the contention raised by the Learned Counsel for applicants may appear to be attractive in the first blush, but in the context of facts and circumstances of the case, the same would be totally devoid of any merit.
2. To determine the controversy in issue, it would be appropriate to give factual matrix of the case culminating into filing of the present Original Application under Section 19 of the Administrative Tribunals Act, 1985. On the night intervening 23/24.11.1998, SI Sanjay Singh, ASI Hans Raj and HC Jagvinder Singh were posted at PS Kanjhawala and AATS/NW District. They recovered 150 cases of illicit liquor which were loaded in a Tata Tempo No. DL TI C 9396. A case FIR No. 142/98 Under Section 61/1/14 Excise Act PS Kanjhawala was registered in this context on the statement of ASI Hans Raj, but only 70 cases of illicit liquor were actually recovered. The rest of the cases containing illicit liquor were misappropriated/disposed of by HC Jagvinder Singh with the connivance of SI Sanjay Singh who was detailed for patrolling duty in PCR Van C-38, ASI Hans Raj and the staff of PCR Van C-38. The applicants Const. (Driver) Dilbagh Singh and HC Om Prakash along with ASI Ram Kishan were doing duty at that time as staff of PCR Van C-38. For the reason that whereas ASI Ram Kishan and applicants Dilbagh Singh and Om Prakash were attached with the PCR at that point of time whereas SI Sanjay Singh, ASI Hans Raj and HC Jagvinder Singh were attached with Police Station staff, two separate departmental enquiries came to be conducted – one against the PCR staff and the other against the Police Station staff. The charge that came to be framed against the Police Station staff reads as follows:
I, Shibesh Singh, ACP/Sub-Division Ashok Vihar, Delhi, charge you, SI Sanjay Singh No. D/1271, ASI Hans Raj No. 482/D and Head Const. Jagvinder Singh No. 322/NW that in the night intervening 23/24.11.1998, you Head Const. Jagvinder Singh No. 322/NW posted as PS Kanjhawala and ASI Hans Raj No. 482/D posted at AATS/NW District, recovered 150 cases of illicit liquor which were loaded in a Tata Tempo No. DI TI-C-9396. A case FIR No. 142/98 Under Section 61/1/14 Excise Act PS Kanjhawala was registered in this context on the statement of ASI Hans Raj but only 70 cases of illicit liquor were shown recovered from the tempo instead of 150 cases which were actually recovered by you according to the statements of the witnesses. Rest of the cases containing illicit liquor were misappropriated/disposed off by you, Head Const. Jagvinder Singh No. 325, NW with the connivance of SI Sanjay Singh No. D-1271 who was detailed for patrolling dury in PCR Van c-38, ASI Hans Raj No. 482/D of AATS and the staff of PCR Van C-38. The 70 cases of illicit liquor were sold @ Rs. 500/- per case at a total cost of Rs. 35,000/-.
The above act on the part of you, SI Sanjay singh No. D/1271, ASI Hans Raj No. 482/D and Head Const. Jagvinder Singh No. 322/NW amounts to gross misconduct, negligence, carelessness unbecoming of a police officer which render you liable for departmental action under Delhi Police (Punishment & Appeal) rules, 1980.
The charge that came to be framed against the applicants and ASI Ram Kishan reads as follows:
I, Shyam Dev Sharma, Asstt. Commissioner of Police, MT/PCR, Delhi charge you, ASI Ram Kishan, No. 3936/D (PIS No. 29710119), HC Om Prakash, No. 1549/PCR (PIS No. 29680056) and Const. (Dvr.) Dilbagh Singh, No. 4330/PCR (PIS No. 28893121), that on the night intervening 23/24.11.98 while your were performing your duties on PCR Van, Commander-38 from 8 PM to 8 AM, on receipt of a call at 10.52 PM from Commander-I you along-with the staff of APS/North-West Distt. And P.S. Kanjhawala intercepted Tempo No. DL-1LC-9396 in the area of P.S. Kanjhawala and recovered 143 Cartons of IMPL but the recovery of only 79 Cartons was shown by the staff of P.S. Kanjhawala with your connivance as well as with the connivance of AATS/North-West Distt. Out of the total 143 Cartons 60 Cartons were removed to a private room under the directions of I.O., HC Jagminder Singh of P.S. Kanjhawala, which were later on shifted to Pappu de Hotel in 3 rounds in the PCR Van. C-38, 2 Cartons were given to them, 2 were kept by the I.O., HC Jagminder Singh and 79 Cartons were shown recovered vide case FIR No. 142 dated 24.11.98 UNDER SECTION 61/1/14 Excise Act P.S. Kanjhawala. You are also charged that the call was given to PCR Van C-38 at 10.52 PM, you reached the spot at 10.55 PM and the tempo was taken to P.S. Kanjhawala at 11.42 PM but the information about the recovery of liquor was given to C-1 at 2.06 AM after a gap of about three hours.
The above act on the part of you, ASI Ram Kishan, No. 3936/D (PIS No. 29710119), HC Om Prakash, No. 1549/PCR (PIS No. 29630056) and Const. (Dvr.) Dilbagh SIngh, 4330/PCR (PIS No. 28393121) amounts to gross misconduct, unbecoming of member of disciplined force which renders you liable for punishment under the provisions of Delhi Police (Punishment and Appeal) Rules-1980 envisages in Section 21 of Delhi Police Act-1978.
The enquiry officer vide his report dated 1.6.2000, insofar as the Police Station staff is concerned, held that ‘Keeping in view the facts and circumstances, the statements of witnesses, exhibits and records, the charges leveled against SI Sanjay Singh, No. D-1271, ASI Hans Raj No. 482-D and HC (Now ASI) Jagvinder Singh No. 322/NW cannot be substantiated. The benefit of doubt must be given to the respondents’. The disciplinary authority while accepting the findings recorded by the enquiry officer exonerated the staff of Police Station of the charges framed against them. Insofar as the applicants and their co-delinquent ASI Ram Kishan are concerned, the enquiry officer vide his report dated 27.5.1999 held them guilty of the charge to the effect that out of 143 cartons, 60 cartons were disposed of with their connivance and they informed Command Room about the number of cartons recovered from the tempo after a gap of about three hours. The disciplinary authority while accepting the report of the enquiry officer, vide order dated 24.9.1999 held the charge against the applicants and ASI Ram Kishan as proved beyond any doubt. The applicants and Ram Kishan were inflicted punishment of forfeiture of four years’ approved service permanently for a period of four years, and accordingly their pay was reduced by four stages for a period of four years in their time scale of pay from Rs. 4800/- to Rs. 4400/-, Rs. 4220/- to Rs. 3880/-, and from Rs. 3575/- to Rs. 3275/- per month, respectively. It was also ordered that they would not earn increments of pay during the period of reduction and on the expiry of this period, the reduction would have the effect of postponing their future increments of pay. Their suspension period from 28.11.1998 to 8.4.1999 was decided as period not spent on duty. The applicants and ASI Ram Kishan, aggrieved by the order passed by the disciplinary authority on 24.9.1999, preferred an appeal but the same was dismissed by the appellate authority vide order dated 26.5.2000. Constrained under the circumstances, all three filed OA No. 1557/2001 in this Tribunal which was dismissed on 16.4.2002. It is pertinent to mention here that it was urged on behalf of the applicants and Ram Kishan that whereas they had all been penalized, three delinquent officials belonging to Police Station Kanjhawala who were also tried departmentally in the same case, had all been exonerated. It was further urged that the applicants and Ram Kishan had been discriminated against and had been wrongly punished even though the allegations leveled against the delinquent officials of Police Station Kanjhawala were identical to those leveled against them. Specific attention of the Tribunal was drawn to the statement of one Jai Pal Singh of Delhi Home Guard who had appeared as a prosecution witness in the disciplinary proceedings held against the applicants and ASI Ram Kishan, as well as in the proceedings conducted against the officials belonging to PS Kanjhawala. The said witness had supported the prosecution in the proceedings conducted against the applicants and Ram Kishan, but had failed to do so in the other proceedings. The Bench considered the contention of the Learned Counsel based upon the disciplinary proceedings and held as follows:
We have considered the aforesaid submissions but are not convinced that merely because the two sets of delinquent officials have been tried on the same set of allegations, the outcome of the proceedings must necessarily be the same in both. The disciplinary proceedings against the delinquent officials belonging to P.S. Kanjhawala have been drawn up separately and have been conducted separately culminating in orders being passed after the disciplinary authority in the present case has passed orders imposing the aforesaid penalty on the applicants in the present O.A. The Inquiry Officers in both these proceedings were different persons and they have examined different set of witnesses including the said Shri Jaipal Singh, who is a witness in both the cases. The disciplinary authorities are also different in these cases. In view of this, we find ourselves unable to agree with the contention raised on behalf of the applicants in the present OA that the applicants have been wrongly punished. Moreover, it is not open to us to consider the evidence given by the said Shri Jaipal Singh, or, for that matter, by the other witnesses with a view to re-appraising the evidence on record. The disciplinary proceedings in the present case have been conducted properly and in accordance with the rules. The applicants have been given due and reasonable opportunity to defend their case. The orders passed by the disciplinary authority are speaking and reasoned orders. The same is the case with the orders passed by the appellate authority. In the circumstances, we do not find anything wrong in the disciplinary proceedings and are not inclined to interfere with the orders passed by the aforesaid authorities.
In the light of the foregoing, the OA is found to be devoid of merit and is accordingly dismissed.
ASI Ram Kishan alone challenged the order of the Tribunal before the High Court of Delhi vide CW No. 7494/2002 and the Hon’ble Bench seized of the matter passed the following order on 1.4.2003:
Mr. Shyam Babu, Learned Counsel for the petitioner submits that the order of the Tribunal is vitiated because the Tribunal has failed to take into consideration various legal issues, which were raised before it. We do not find even a whisper of any of the contentions now sought to be canvassed before us in the impugned order. In that view of the matter, Learned Counsel for the petitioner seeks leave to withdraw the writ petition with liberty to move an appropriate application before the Tribunal for review of the impugned order along with an application for condonation of delay in filing the same.
The writ petition is accordingly dismissed as withdrawn with liberty, as prayed.
ASI Ram Kishan, taking cue from the order dated 1.4.2003 passed by the High Court of Delhi, filed an application seeking review of order dated 16.4.2002 in OA No. 1557/2001 passed by the Tribunal. The only contention raised in support of the application was that the applicants had been awarded multiple punishments, which would be against the rules. It was urged on behalf of the applicant Ram Kishan that specific ground in the OA was that the applicants had been awarded multiple punishments which was absolutely contrary to the rules and procedure but the said point had not been decided by the Tribunal in specific terms. The limited plea with regard to non-permissibility of multiple punishments was contested by the counsel representing the respondents, but the Tribunal allowed the application for review by holding that in view of the judgment of the Hon’ble Delhi High Court in Shakti Singh v. Union of India and Ors. in CWP No. 2368/2000 decided on 17.9.2002, multiple punishments would be in gross violation of provisions of rule 8(d)(ii) of the Delhi Police (Punishment & Appeal) Rules), 1980. In this background, order of the Tribunal dated 16.4.2002 was recalled and the case was remanded to the disciplinary authority for passing a fresh punishment order in the light of the observations of the Tribunal. It is pertinent to mention here that the only point canvassed and which was accepted by the Tribunal pertained to non-permissibility of multiple punishments and the case was remanded to the disciplinary authority for passing a fresh order in the light of observations made by the Tribunal. The order to be passed by the disciplinary authority would thus not go beyond the punishments. The disciplinary authority on order of remand passed by the Tribunal in the review application filed by ASI Ram Kishan, quashed orders dated 24.9.1999 and 26.5.2000, but vide orders dated 13.10.2004 on re-consideration of the matter passed an order of forfeiture of four years’ approved service against ASI Ram Kishan. Feeling aggrieved, Ram Kishan filed an appeal to the Joint Commissioner of Police/Operations, which was allowed vide order dated 30.5.2006. The order of punishment passed against Ram Kishan was set aside and his period of suspension was treated as if spent on duty. When Ram Kishan who was jointly proceeded with the applicants, was able to get an order of exoneration, an occasion arose to the applicants to make representation for claiming the same benefit as was accorded to Ram Kishan. However, their representation was rejected vide order dated 23.11.2006 by holding that the order dated 30.5.2006 in respect of Ram Kishan was passed by the appellate authority on his appeal whereas the appeals of the applicants were entertained and rejected by the appellate authority vide order dated 26.5.2000, and there would be no provision at that stage under the Delhi Police (Punishment & Appeal Rules), 1980 to entertain their representation.
3. Shri Shyam Babu, on the facts as fully detailed above, has raised the plea of discrimination alone. He would urge that when all concerned involved in the incident that had occurred in the night intervening 23/24.11.1998 have been exonerated, treatment meted out to the applicants would be hostile discrimination against them and would be thus violative of Article 14 of the Constitution of India. He would further contend that meeting out differential treatment to the applicants with regard to the same allegations would be travesty of justice. The argument, indeed, as urged by Shri Luthra, Learned Counsel representing the respondents, appears to be attractive in the first blush, but we are of the considered view that in the facts and circumstances of this case no relief can be granted to the applicants, as we are fully convinced that the order exonerating ASI Ram Kishan was per se illegal and even without jurisdiction. The applicants thus cannot get the benefit of such an order, as surely, violation of Article 14 cannot be successfully urged on the basis of illegal orders. It may be recalled that the plea with regard to discrimination was strenuously urged before this Tribunal by the applicants and ASI Ram Kishan in the joint OA filed by them bearing No. 1557/2001. The plea raised by them was specifically rejected, as would be clear from the relevant portion of the order passed by the Tribunal in the OA aforesaid reproduced above. Ram Kishan filed writ against the order aforesaid and in fact the only argument raised before the Hon’ble Delhi High Court was that several legal issues raised by the applicants were not dealt with by the Tribunal. There was no contention before the High Court that the applicants had been discriminated vis-`-vis members of the Police Station staff who faced a separate departmental enquiry and were exonerated. It is absolutely clear that the order passed by this Tribunal was confirmed by the Delhi High Court. When confronted with the position that there was not a whisper with regard to the pleas sought to be canvassed before the High Court in the order passed by the Tribunal, the counsel sought leave to withdraw the writ petition with liberty to move an appropriate application for review before the Tribunal. In the application for review, nothing based upon discrimination was urged. The only plea raised was with regard to non-permissibility of multiple punishments. The review was allowed to the limited extent and the disciplinary authority was required to re-consider the question of punishment. The disciplinary authority was directed to pass a fresh order of punishment alone in the light of observation made by the Tribunal. The observations made in the order, we may reiterate, pertained only to multiple punishments, and nothing else. Despite the fact that the plea of discrimination raised by Ram Kishan had failed before the Tribunal and even before the Hon’ble High Court, the appellate authority yet examined the same plea and allowed it. The relevant part of the order passed by the appellate authority reads as follows:
I have carefully gone through the appeal of the appellant as well as relevant record on file. The appellant was also heard in orderly room on 10-1-2006 and he reiterated the pleas already taken by him in his appeal and also furnished a copy of the order No. 8392-422/HAP/NW(P-I) dated 13-6-2000, passed by DCP/NW Distt wherein SI Sanjay Kumar, No. D/1271, who was on patrolling duty on PCR Van C-38 on that particular night, had been exonerated of the same charge alongwith other concerned police personnel of PS Kanjhawala. The concerned DE file was also summoned and examined. There were three common and material witnesses in both the DEs. In the DE against the staff of PCR, these PWs have supported the allegations whereas in the DE conducted against the staff of North-West Distt., these witnesses have given different statements and did not support the prosecution. There is contradiction in their statements. Since SI Sanjay Kumar, No. D/1271 was detailed for patrolling duty on PCR Van C-38 and he was also dealt with departmentally in North West Distt. on the same charge and he had been exonerated of the charge. The punishment awarded to the appellant in such circumstances is not justified. Keeping in view the overall facts and circumstances of the case, the appeal of the appellant is accepted and punishment awarded to him is hereby set aside and his above mentioned suspension period is decided as spent on duty.
We are absolutely convinced that a plea which found no favour earlier with the disciplinary and appellate authorities as also this Tribunal and the Hon’ble High Court, could not be revived and relief granted to Ram Kishan on that ground. The learned appellate authority, in our considered view, acted as if dealing with an appeal filed against the order of the Tribunal and the Hon’ble High Court, which was wholly impermissible, unauthorised and without jurisdiction. The order passed in favour of Ram Kishan by the appellate authority would also be without jurisdiction because the Tribunal in the review application authorised it to pass a fresh order of punishment and not to have a de novo consideration of the guilt of the applicant. Once, the order passed in favour of Ram Kishan by the appellate authority is wholly illegal and without jurisdiction, the applicants cannot take advantage of the same in their endeavour to show that they have been discriminated vis-`-vis their co-delinquent Ram Kishan, or for that matter, the officials of Police Station staff. We are conscious that an anomalous situation has arisen where the applicants alone have been punished with regard to the same incident for which others have been exonerated, but this anomaly needs to be set right by the department itself. We are not in a position to set aside the order passed by the appellate authority dated 30.5.2006 exonerating Ram Kishan, even though we were tempted to do so, as Ram Kishan is not before us. The very fact that this Tribunal may not be in a position to set aside the orders passed in favour of Ram Kishan would not, however, mean that the relief granted to him illegally should be granted to the applicants as well.
4. Before we may part with this order, we may mention that on conclusion of arguments of this case, by a separate order dated 24.1.2008, we had issued notice to Dr. Aditya Arya, IPS, the then Joint Commissioner of Police (Operations), Delhi, as we were at that time, of the opinion that the appeal preferred by Ram Kishan which was decided on remand on a limited matter, could not as such be allowed, and the issue which had since been settled by this Tribunal and confirmed by the Hon’ble High Court of Delhi, could not be re-opened, and, therefore, the conduct of Dr. Aditya Arya may come under adverse comments. Pursuant to notice issued by this Tribunal, Dr. Aditya Arya appeared and explained his position. We have passed separate orders insofar as the said aspect of the case is concerned.
5. Finding no merit in this Application, we dismiss the same, leaving, however, the parties to bear their own costs.