Govt. Of Nct Of Delhi & Ors. vs Sh. Mohinder Singh & Ors.
2010 Latest Caselaw 835 Del

*                   IN THE HIGH COURT OF DELHI AT NEW DELHI


+                                 W.P. (C.) No.910/2010


%                             Date of Decision: 15.02.2010


Govt. of NCT of Delhi & Ors.                         .... Petitioners
                      Through Mr. N.Waziri and Ms.Jyoti Singh,
                              Advocates for GNCTD/petitioner No. 1


                                        Versus


Sh. Mohinder Singh & Ors.                                      .... Respondents
           Through                     Mr. Anil Singal, Advocate for the
                                       respondent No. 1
                                       Mr. Atul Nanda, Advocate for
                                       respondent No. 2/UOI



CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE MOOL CHAND GARG


1.       Whether reporters of Local papers may be                   YES
         allowed to see the judgment?
2.       To be referred to the reporter or not?                      NO
3.       Whether the judgment should be reported in                  NO
         the Digest?



ANIL KUMAR, J.

*

The petitioners Govt. of NCT of Delhi and others have challenged

the order dated 9th December, 2009 passed by the Central

Administrative Tribunal, Principal Bench in OA No. 1312/2009 titled as

Mohinder Singh Vs. Union of India & Ors. allowing the petition of

respondent No. 1 holding that there is no justification to initiate the

departmental proceedings against respondent No. 1 after 25 years, after

1984 riots especially as the respondent No. 1 had rather been awarded

two promotions in the meanwhile.

By order dated 29th April, 2009, a regular departmental inquiry

was proposed against the respondent No. 1 on the ground that while

posted at PS Sriniwaspuri, he failed to exercise effective control in the

area where violence had started after the of assassination of Smt. Indira

Gandhi in October/November, 1984 riots. The allegation of lack of

effective control by respondent No. 1 is based on the affidavits filed by

Sardar Santokh Singh dated 9th September, 1985 before Justice Ranga

Nath Mishra, Inquiry Commission and the affidavit dated 25th July,

1987 of Sh. Gurdayal Singh which was attested by a notary public

which has an apparent extrapolation in respect to name of the

respondent no.1.

Along with the order dated 29th April, 2009, alleging that the

respondent No. 1 is guilty of gross negligence and dereliction of duty

with malafide intention, and conducting himself in a manner

unbecoming of government servant and violation of provisions of Rule 3

of the CCS (Conduct) Rules, the name of three witnesses were cited

which were Sardar Santokh Singh, Sardar Gurdayal Singh, deponents

of two affidavit and MHC (Srinivaspuri) to prove the FIR No. 369/1984.

The Tribunal while setting aside the order dated 29th April, 2009

ordering departmental inquiry against the respondent No. 1 noted that

respondent No. 1 has been awarded two promotions since 1984 and no

satisfactory rather no explanation has been given for delay of 25 years.

The respondent No. 1 before the Tribunal denied the imputations

made against him. The basis of ordering departmental inquiry against

the respondent No. 1 is the affidavit of Sh. Santokh Singh, who was 65

years on 9th September, 1985 when the alleged affidavit was given by

him before Justice Ranga Nath Mishra, Enquiry Commission. Sh.

Santokh Singh in his affidavit had only deposed about the presence of

respondent No. 1 along with the DCP of the area and SHO Ishwar Singh

and Ved Prakash, Head Constable. The learned counsel for the

petitioners is unable to disclose as to what action has been taken

against the SHO Ishwar Singh and other constable Ved Prakash.

This is not disputed that the petitioners have not got it

ascertained about Sh. Santokh Singh alleged witness, who was 65 years

in 1985 as to whether he is alive or not. The affidavit which is only a

copy obtained from the Commission cannot be relied on even under

Rule 16 (iii) of Delhi Police (Punishment and Appeal) Rules, 1980 on the

basis of allegations made on behalf of the petitioners. The learned

counsel for the petitioners is also unable to give any justifiable reason

for not recording the statement of the said witness even for preliminary

investigation for the past 25 years for initiating the departmental

proceedings now.

Similarly, the affidavit of Sardar Gurdayal Singh dated 25th July,

1987 cannot be considered under Rule 16 (iii) of the Delhi Police

(Punishment and Appeal) Rules, 1980 even during regular enquiry.

Neither there is any allegation as to what steps were taken to record the

preliminary statement of said witness nor anything has been disclosed

about the availability of the said witness. Nothing has been shown as to

what steps were taken or were proposed for regular enquiry in the past

25 years or why the regular enquiry could not be initiated within

reasonable time after the alleged affidavits were given by said witnesses.

Apparently the entire basis of regular departmental enquiry is only the

affidavits of these alleged two witnesses.

Rule 16 (iii) of Delhi Police (Punishment and Appeal) Rules, 1980

contemplates that as far as possible the witnesses shall be examined

directly in the presence of the accused who has to be given opportunity

to take notice of their statements and cross-examine them. Though the

inquiry officer is empowered to bring on record the earlier statement of

any witness whose presence cannot, in the opinion of such inquiry

officer, be procured without undue delay, inconvenience or expense

provided the statements are recorded and attested by police officer

superior in the rank to the accused.

Admittedly, the affidavits of Sardar Santokh Singh and Sardar

Gurdayal Singh were not given to a police officer superior to the

respondent No. 1 and in the circumstances, even if the regular inquiry

is initiated, on the basis of such affidavits the charges cannot be

established against the respondent no.1. No explanation has been given

if these two affidavits were given in 1985 and 1987 then why the regular

departmental enquiry could not be initiated against respondent within

reasonable time. The facts in compliance of requirement of Rule 16 (iii)

of Delhi Police (Punishment and Appeal) Rules, 1980 have not even

been alleged. In the circumstances the regular departmental inquiry

should not be permitted after twenty five years of the alleged incident in

the facts and circumstances only on the basis of these two affidavits

and nothing else. This is also not disputed that since then respondent

no.1 has already been given two promotions. The petitioners have not

even alleged as to when they got the copies of affidavits of these

witnesses.

This cannot be disputed that on account of this undue delay of

25 years in the facts and circumstances, the respondent No. 1 shall be

greatly prejudiced. The respondent No. 1 is on the verge of his

retirement and he has already been given two promotions. There was no

stay or restriction against the petitioners to initiate the departmental

proceedings in view of the alleged two affidavits which were also given

about twenty two years ago. Affidavit of Gurdial Singh is notarized and

also has extrapolation with different typing ink. In the circumstances,

there is no ground disclosed by the petitioner for delay in inquiry of 25

years nor there is any allegation even that the respondent no.1 will not

be prejudiced on account of this long and undue delay. No other cogent

preliminary evidence has been disclosed by the petitioners for initiating

regular departmental inquiry against the respondent no.1.

In the circumstances, the decision of the Tribunal quashing the

order dated 29th April, 2009 initiating regular departmental inquiry

against the respondent No. 1 for the alleged incident of 1984 without

explaining undue delay cannot be faulted. There is no such illegality or

irregularity in the order of the Tribunal impugned before this Court

which will require interference by this Court in the exercise of its

jurisdiction under Article 226 of the Constitution of India.

The writ petition in the facts and circumstances of the case is

without any merit and it is therefore, dismissed.

ANIL KUMAR, J.

February 15, 2010                              MOOL CHAND GARG, J.
'rs'