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2002 DIGILAW 1109 (DEL)

ASHOK KUMAR v. UNION OF INDIA

2002-08-08

A.K.SIKRI, S.B.SINHA

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S. B. SINHA ( 1 ) THE order of the Central Administrative Tribunal dated 3-9-1997 passed in O A No 2997 of 1991 has been questioned by the writ petitioner. The petitioner herein was a driver in delhi Police. He was charge-sheeted on 18. 3. 1991 for misconduct. The relevant portion of the charge sheet is as follows: " While posted in 1st Bn. DAP you were detailed for duty along with Govt vehicle no. PEG 4996 at PTS Jharoda Kalan with the direction to remain present there till further orders but you returned back along with vehicle on 22 9. 80 from PTS at your own sweet will On 23,9 90 HC Mukhtyar Singh CHM/mt reported the matter to Insp, babu Singh, deployment officer who asked you as to why you had come back from pts then you replied" MAINE KYA THEKA LE REKHA HAI AUR BHI DRIVER hain" You were ordered to go to PTS Jharoda Kalan along with vehicle but you refused to obey his order and left his office Besides you also remained absent from duty willfully and unauthorisedly on following two occasions " ( 2 ) UPON holding a departmental proceedings he was dismissed on 14. 5. 1991. He preferred an appeal which was dismissed vide order dated 5. 9. 1991. The defence of the petitioner in the departmental proceedings was that owing to his own illness as also due to illness of his wife he could not attend to his duties. ( 3 ) ON the legality of domestic enquiry he contended that his defence assistant one inspector Shakti Singh was not allowed to appear on his behalf. His further contention was that in the absence of his defence assistant he could not cross-examine PW 1. Similarly, PW 2 and 3 were examined in the absence of his defence counsel. According to him despite his having moved an application for calling Shakti Singh, the same was not allowed. He could not cross-examine the witnesses. On the other hand, the respondents have contended that the petitioner was given all reasonable opportunities to defend his case and was given several opportunities to examine his defence witnesses and to cross-examine the witnesses of the department but he failed at every stage and made all attempts to delay the proceedings. He could not cross-examine the witnesses. On the other hand, the respondents have contended that the petitioner was given all reasonable opportunities to defend his case and was given several opportunities to examine his defence witnesses and to cross-examine the witnesses of the department but he failed at every stage and made all attempts to delay the proceedings. ( 4 ) LEARNED Tribunal examined the records of disciplinary proceedings and upon consideration of the respective contentions of the parties held : "6. From the medical certificates placed on record, it is seen that the applicant had been declared fit for duty on 20. 8. 1990. The incident for which the applicant had been charge-sheeted was on 22. 9. 1990 when he was alleged that he had disobeyed orders by not performing his duty to bring the force back from he had transported for duty at Rashtrapati Bhawan, etc. The applicant has, therefore not produced any evidence/medical certificates to show that on the date of the alleged incident he was unable to do his duty because of his bad health, and this ground is rejected. 7. However, it is seen that the applicant was very much present on 1. 4. 1991 when the defence witness was examined and if he wanted to, he could have cross examined the witnesses. Rule 16 (iii) of the Delhi Police ( Punishment and Appeal ) rules, 1980 provides, inter alia, that as far as possible the witnesses shall be examined direct and in the presence of the accused who shall be given opportunity to take notes of their statements and cross examine them. From a perusal of the proceedings and record it cannot be stated that the respondents have failed to give an opportunity to the applicant to bring his defence assistant and witnesses as mentioned above, his explanation that he could not perform his duty because of his ill health, is not at all substantiated by the medical certificate on record. " ( 5 ) THE Tribunal further held that it cannot re-appreciate the evidence. It arrived at the finding: "nevertheless, the Supreme Court held that where the officer had disobeyed the - superior authority s orders to appear before the District Medical Officer after the applicant overstayed on medical grounds, there was " good and sufficient reason" to proceed against him for misconduct. It arrived at the finding: "nevertheless, the Supreme Court held that where the officer had disobeyed the - superior authority s orders to appear before the District Medical Officer after the applicant overstayed on medical grounds, there was " good and sufficient reason" to proceed against him for misconduct. " ( 6 ) MR Devesh Singh, learned counsel appearing for the petitioner, has raised a short question in support of this writ petition. Learned counsel would contend that having regard to the provisions of Delhi police ( Punishment and Appeal) Rules, 1980, and/or the provisions of CCS (CCA) Rules as in the instant case a defence assistant of the choice of the petitioner was not provided, the entire proceedings is vitiated in law. In this connection, our attention has been drawn to counter-affidavit filed by the respondent which is to the following effect: "it is submitted that a memo was sent to the DCP/de cell to obtain the approval of the competent authority for engaging inspector Shakti Singh as defence assistant. But the approval was not received tilt the finalisation of the DE proceedings. It is further submitted that the petitioner has also failed to secure the presence of his defence assistant despite several opportunities. That no rule has been violated by the disciplinary authority. " ( 7 ) IT is thus evident that no defence assistant of the choice of the petitioner was provided. ( 8 ) THE contention of the leaned counsel is that in the absence of the order of approval, the defence assistant could not be produced and thus the petitioner has been deprived of his valuable right. In this connection he has also drawn our attention to the contention in the review application before the Tribunal which is to the following effect: "in this regard the applicant refer to RA-1 and RA-2 whereby the applicant had got the consent of defence assistant on 29. 11. 1990 and the applicant had requested the authorities on 20. 12. 1990 to call the defence assistant through the letter. It is further submitted that the enquiry officer himself had written a letter attaching the willingness of defence assistant to the department. 11. 1990 and the applicant had requested the authorities on 20. 12. 1990 to call the defence assistant through the letter. It is further submitted that the enquiry officer himself had written a letter attaching the willingness of defence assistant to the department. But the department had not requested the controlling authority for his permission and without following the proper procedure examined the prosecution witnesses in absence of the defence assistant of the applicant for which he had objected to in the statements vide Annexure A-III" ( 9 ) RULE 5 of the Delhi Police ( Punishment and Appeal) Rules, 1980 provide for various punishments. Rule 7 provides for punishment which shall not amount to penalty. Rule 15 provides for a preliminary enquiry whereas Rule 16 of the said Rules provides for procedure in departmental proceedings. ( 10 ) ACCORDING to Government of India Instructions on Departmental Proceedings and Prosecution (in Swamy s CCS (CCA) Rules) provided for intimation to be given to the Controlling authority of the government servant assisting the accused. " Rule [cj1]14 (8) provides that the Government servant against whom disciplinary proceedings have been initiated may take the assistance of any other government servant to present the case on his behalf. While no permission is needed by the official who is charge-sheeted to secure the assistance of any other Government servant, it is necessary for the latter to obtain the permission of his controlling authority to absent himself from office in order to assist the accused Government - servant during the enquiry. It would avoid delay in granting such permission, if the inquiry Officers take the initiative in the matter of informing the controlling Authority in this regard. It is, therefore, suggested that as soon as the accused government servant informs the Inquiry officer of the name and other particulars of the Government servant who has been chosen by him to assist in the presentation of his case, the inquiry officer should intimate this fact to the controlling authority of the Government servant concerned. It is, therefore, suggested that as soon as the accused government servant informs the Inquiry officer of the name and other particulars of the Government servant who has been chosen by him to assist in the presentation of his case, the inquiry officer should intimate this fact to the controlling authority of the Government servant concerned. Further, the date and time of the hearing should be intimated to the said controlling authority sufficiently in advance adding that if for any compelling reason it is not practicable to, relive the, Government servant concerned on the due date or dates to attend the enquiry, the inquiry officer the accused official and the government servant chosen for assisting the accused official may be advised well in time "( 11 ) IN the instant case as noticed hereinbefore the competent authority did not grant approval within a reasonable time so as to enable the petitioner to have the services of a defence assistant and such approval was given only after the disciplinary proceedings were over. The contention of the petitioner therefore that in the absence of the defence assistant he could not cross-examine the prosecution witness stands fortified by the respondent. In the considered opinion of this court it has resulted in miscarriage of justice. ( 12 ) THERE cannot be any doubt whatsoever,that an employee is entitled to assistance of a friend who may be a co-employee. The petitioner has contended (CJ2]: "in the instant case, the enquiry officer has written a letter to the controlling authority of the defence assistant on 21. 12. 1990 for willingness of the defence assistant and without awaiting the reply of the controlling authority of defence assistant proceeded to examine alt the witnesses and subsequently after the dismissal of the petitioner from service, the disciplinary authority sent a letter to the controlling authority of the defence assistant for approval. The aforesaid approval has not been taken before the examination of the-prosecution witness. This has greatly prejudiced the petitioner as he could; not procure the presence of his defence assistant and the witnesses have been examined without affording a right of cross examination to the petitioner. " ( 13 ) THE respondents. in the instant case, have categorically admitted that in the absence of approval of the competent a. thority to release his defence assistant his services could not be availed. The petitioner is a driver. " ( 13 ) THE respondents. in the instant case, have categorically admitted that in the absence of approval of the competent a. thority to release his defence assistant his services could not be availed. The petitioner is a driver. No case has been made out that the petitioner was not prejudiced in the matter of obtaining the services of defence witnesses. Such a prejudice is clearly established. A delinquent employee subject to any rules may not be entitled to service of a legal practitioner but with a view to defend himself appropriately which is a part of the principles of natural justice he is entit a to assistance of a friend. ( 14 ) BEFORE a punishment is imposed which deprives an employee of his bread and butter, the minimum requirement of the principles of natural justice must be followed. Giving an opportunity to the delinquent employee of having an assistance of a friend is a well settled and is a part of principles of natural justice As in the instant case the petitioner has been deprived of the assistance of a defence assistant the impugned order cannot be sustained which is set aside accordingly and it is directed that the petitioner be given an opportunity to cross examine the prosecution witnesses by a defence assistant of his choice, whereafter the disciplinary authority may take a decision afresh. Petitioner shall however continue to remain under suspension The writ petition is disposed of without any order as to costs.