Central Administrative Tribunal - Delhi
Acp Mahipal Singh S/O Late Sh. Kamal ... vs Union Of India Through Secretary on 14 January, 2015
Central Administrative Tribunal Principal Bench: New Delhi OA No. 2808/2013 Reserved on:25.09.2014 Pronounced on:14.01.2015 Honble Mr. Justice Syed Rafat Alam, Chairman Honble Dr. B.K. Sinha, Member (A) ACP Mahipal Singh s/o Late Sh. Kamal Singh R/o T-21 (IInd Floor) Green Park, New Delhi Presently posted at 7th Bn. DAP. Applicant (By Advocate: Sh. Saurabh Ahuja) Versus 1. Union of India through Secretary, Ministry of Home Affairs, North Block, New Delhi. 2. Joint Secretary, Ministry of Home Affairs, Union of India, North Block, New Delhi. 3. GNCT of Delhi through Chief Secretary, Delhi Sachivalaya, IP Estate, New Delhi 2. 4. Lt. Governor of Delhi, Raj Niwas, Shamnath Marg, New Delhi. 5. Commissioner of Police (Delhi Police), Police Head Quarters, I.P. Estate, MSO Building, New Delhi. 6. Chief Vigilance Officer Directorate of Vigilance GNCT of Delhi, 4th Level, C-Wing, Delhi Sachivalaya, Players Building, New Delhi-2. 7. Additional Secretary (Home), GNCT of Delhi, Delhi Sachivalaya, Players Building, IP Estate, New Delhi. Respondents (By Advocates: Sh. Rajeev Kumar and Sh. Vijay Pandita) O R D E R By Dr. B.K. Sinha, Member (A):
The instant Application has been filed under Section 19 of the Administrative Tribunals Act, 1985 challenging the OM dated 03.01.2013 asking the applicant to show cause as to why he should not be departmentally proceeded upon and further the OM dated 10.06.2013 of the Directorate of Vigilance requesting Delhi Police to provide the name of inquiry officer in the proceeding to be conducted against the applicant.
2. The brief facts of the case are that on 08.09.2010, there was a confrontation between one Vikas Bakshi who was travelling along with his wife in his car and one Nazanin Gheidi, an Iranian national residing in same locality over the issue of passage to each others car in CR Park. The parties were taken to CR Park Police Station. The complaint of the said Vikas Bakshi was that though both the parties were brought to the Police Station, but he and his wife alone were asked to undergo medical test; whereas the said Nazanin Gheidi was allowed to leave without undergoing this formality. Thereupon, the said Vikas Bakshi filed a complaint before the Lt. Governor of Delhi that subsequent to the incident, he had been summoned to the CR Park Police Station on 09.09.2010 to inquire about the matter and a Kalandara under Section 91/93/97 of Delhi Police Act was registered against him. The said Vikas Bakshi alleged the case of Kalandra u/s 91/93/93 of Delhi Police as false and fabricated with the connivance of Police officials i.e. the applicant ACP/Ambedkar Nagar, Delhi Police, one Anil Durega, Inspector/SHO/CR Park, Delhi Police, Sanjay Singh, Inspector and DP Singh, Sub Inspector, Delhi Police. The said Vikas Bakshi, however, alleged that he was beaten up in the room of SHO/PS-CR Park by the Police officials, including the applicant, ACP, Delhi Police. In the said complaint, Vikas Bakshi further alleged that he was body searched and beaten up by all the accused persons and arrested while his wife was summoned to sign the bail bond. He was further medically examined as he was suspected to be under the influence of liquor, but the MLC did not find any sign of influence of liquor while fresh injuries also were not reported. The case record showed that on 09.09.2010, i.e., during the inquiry of the matter, Vikas Bakshi was carrying a video recorder of 2 GB capacity in his pocket, upon the discovery of which he became aggressive and started using abusive language, and had to be arrested when the officials present failed to pacify him. The charge against the applicant is that he failed to act in a fair manner in the matter, instead he abused his powers and influenced the actions of his subordinates, who at his behest and on his insistence made out a case against the said Vikas Bakshi. He was, therefore, charged with the failure to maintain professional integrity thereby exhibiting conduct unbecoming of a Government servant. A vigilance inquiry was conducted by the Delhi Police on the basis of the said complaint. In the meantime, the complainant Vikas Bakshi also instituted Criminal Writ No. 1820/2010 before the Honble High Court of Delhi seeking quashing of the proceedings against him under Section 91/93/97 of the DP Act. The High Court rejected the prayer of Vikas Bakshi vide its order dated 29.11.2011. The said Vikas Bakshi was discharged by the court of competence jurisdiction on 20.09.2011 under Section 91 of the Delhi Police Act, 1978 at the very initial stage. However, notice was framed by the court of competent jurisdiction under Section 93/97 of the DP Act, 1978 against the accused Vikas Bakshi.
3. The applicant has submitted that a regular departmental inquiry was initiated against Anil Durega, Inspector/SHO/CR Park, Delhi Police, Sanjay Singh, Inspector and Delhi Police and DP Singh, Sub Inspector for making arrest of the said Vikas Bakshi under Sections 91/93/97 of Delhi Police Act and taking action against him without proper justification. The inquiry officer, following a full-fledged inquiry, discharged Anil Durega, Inspector/SHO/CR Park, Delhi Police, Sanjay Singh, Inspector and Delhi Police and DP Singh, Sub Inspector, Delhi Police. Agreeing with the findings of the Inquiry Officer, the Addl. Commission of Police, Police Control Room, Delhi, vide order dated 10.12.2012 exonerated Inspector Anil Dureja, Inspector Sanjay Kumar Singh and SI DP Singh of the charge. The applicant submits that while the other co-defaulters namely, Anil Durega, Inspector/SHO/CR Park, Delhi Police, Sanjay Singh, Inspector, Delhi Police and DP Singh, Sub Inspector were exonerated from the charge, the proceeding was allowed to stand against him. In this regard, he submitted a representation on 23.01.2013 wherein he denied all the allegations and submitted that the complainant Vikas Bakshi had not been absolved of charges under Sections 93/97 of DP Act. He inter alia submitted that when his co-defaulters were discharged in the departmental proceedings, there was no reason as to why proceedings be allowed to stand against him alone. It is the allegation of the applicant that no order was passed on his representation and the respondents continued with the proceedings appointing the inquiry officer and presenting officer.
4. The principal ground adopted by the applicant is that the charges against him cannot sustain in the eyes of law for the reason that the departmental proceeding against his subordinates, namely, Anil Durega, Inspector/SHO/CR Park, Delhi Police, Sanjay Singh, Inspector and Delhi Police and DP Singh, Sub Inspector/IO of the Kalandara matter, were dropped on the ground that they had not committed any misconduct and the action taken by them against the complainant Vikas Bakshi is legal and justified. The applicant submits that when the action of the main actors was found to be justified and legal, then taking departmental action against the applicant, who had only directed his subordinate officers, to act as per law, is not sustainable.
5. The applicant states that there cannot be two sets of rules for similarly situated persons as the Police Officers, who had filed and forwarded the Kalandara as per their knowledge and understanding of law against the complainant Vikas Bakshi, stood exonerated of the allegations, while disciplinary proceeding has been initiated against the applicant, which would be absolutely illegal and arbitrary.
6. The applicant submits that error of judgment per se is not misconduct and there is total non-application of mind. In this regard, he has sought to draw support from the decision dated 22.9.2011 in OA No. 2895/2010 (Dr. D.P. Ray Vs. MCD & Ors.).
7. The respondent no.5 has filed a counter affidavit stating that the charge-sheet has been submitted and IO and presenting officer have been appointed. The respondents have relied upon a decision of the Honble Supreme Court in Union of India Vs. Upendra Singh (1994) 3 SCC 357 to contend that at this stage, the Tribunal has no jurisdiction to go into the correctness or the truth of the charges and cannot take over the functions of the disciplinary authority. It is for the disciplinary authority to go into the truth of the charges and the jurisdiction of the court/tribunal of judicial review would only arise once the departmental proceedings have been exhausted. The court of the Metropolitan Magistrate had found the complainant Vikas Bakshi not guilty of Section 91 of the DP Act which includes the charge of inappropriate behavior in public place and consumption of liquor.
8. Learned counsel for the respondent No.5 has further submitted that there was sufficient material for submission of charge-sheet and to initiate departmental inquiry against all the persons charged, namely Anil Durega, Inspector/SHO/CR Park, Delhi Police, Sanjay Singh, Inspector and Delhi Police and DP Singh, Sub Inspector, Delhi Police. Therefore, the inquiry should be allowed to proceed and be concluded. The learned counsel for the respondents submitted that the case of DP Ray Vs. Union of India (supra) is not applicable as it is related to minor infringement whereas the applicant was charged under Rule 14 of the CCS (CCA) Rules, 1965 for a major punishment. He further submitted that the complaint was specific that the applicant had influenced the subordinate officers to act in a wrongful manner.
9. The respondent no.5 has also submitted that it was the applicant, who had directed the other charged officers namely Anil Durega, Inspector/SHO/CR Park, Delhi Police, Sanjay Singh, Inspector and Delhi Police and DP Singh, Sub Inspector/IO of the Kalandara matter, Delhi Police to take action against the complainant and accordingly, Kalandara under Section 91/93/97 of Delhi Police Act, was instituted. However, the charge under Section 91 was not found sustainable and the complainant was discharged of the same by the Court of Metropolitan Magistrate.
10. Another counter affidavit has been filed on behalf of respondent nos. 2,3,4 and 6 wherein practically the same facts as contained in the other counter affidavit have been reiterated.
11. The applicant has filed a rejoinder supporting the OA and rebutting all the points raised in the counter affidavits.
12. The arguments of the respective counsels veered around the assertion that the applicant had been charged of abusing his powers and influencing his subordinates to act against the complainant Vikas Bakshi; all his subordinates have been exonerated of the charges in the departmental proceedings. Therefore, the proceedings against the applicant would also not sustain.
13. We have carefully examined the contents of the pleadings and such documents that have been adduced by the parties. We have also patiently listened to the arguments advanced by their respective counsel and on the basis thereof, we find that the following issues need to be decided in order to arrive at a specified conclusion of the instant dispute:-
(a) Whether the Tribunal is within its competence to take up the prayer for quashing charge-sheet at this stage?
(b) Whether the proceedings against the applicant would sustain in view of the fact that all the subordinates have been exonerated in the departmental proceedings?
14. In so far as the first issue is concerned, it has been examined in depth in OA Nos.3314/2011, 1918/2012 and 15/2014 and, therefore, we need not examine the issue in such length. We do acknowledge the following observations made in Para 6 of the judgment of the Honble Supreme Court in Union of India & Ors. Vs. Upendra Singh (supra):-
6. In the case of charges framed in a disciplinary inquiry the tribunal or court can interfere only if on the charges framed (read with imputation or particulars of the charges, if any) no misconduct or other irregularity alleged can be said to have been made out or the charges framed are contrary to any law. At this stage, the tribunal has no jurisdiction to go into the correctness or truth of the charges. The tribunal cannot take over the functions of the disciplinary authority. The truth or otherwise of the charges is a matter for the disciplinary authority to go into. Indeed, even after the conclusion of the disciplinary proceedings, if the matter comes to court or tribunal, they have no jurisdiction to look into the truth of the charges or into the correctness of the findings recorded by the disciplinary authority or the appellate authority as the case may be. The function of the court/tribunal is one of judicial review, the parameters of which are repeatedly laid down by this court. It would be sufficient to quote the decision in H.B. Gandhi, Excise and Taxation Officer-cum-Assessing Authority, Karnal v. Gopi Nath & Sons . The bench comprising M.N. Venkatachaliah, J. (as he then was) and A.M. Ahmadi, J., affirmed the principle thus :
"Judicial review, it is trite, is not directed against the decision but is confined to the decision-making process. Judicial review cannot extend to the examination of the correctness or reasonableness of a decision as a matter of fact. The purpose of judicial review is to ensure that the individual receives fair treatment and not to ensure that the authority after according fair treatment reaches, on a matter which it is authorised by law to decide, a conclusion which is correct in the eyes of the court. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. It will be erroneous to think that the court sits in judgment not only on the correctness of the decision making process but also on the correctness of the decision itself."
However, in light of the other judgments as have been examined in afore OAs, it is not that the Tribunal has been altogether debarred from undertaking judicial review in respect of the departmental proceedings even at the charge-sheet stage. It is now well accepted that the scope of judicial review does extend in departmental proceeding even at the charge-sheet stage where it is found that the charge-sheet issued makes out no charges. Where it has been issued against some express provisions of law; hit by malafide or void ab initio (Indian Railway Construction Co. Ltd. Vs. Ajay Kumar (2003)4 SCC 579]; and is in disregard of the principles of natural justice.
15. In State of UP VS. Johri Mal, (2004) 4 SCC 714, the Honble Supreme Court has held as under:-
8. The scope and extent of power of the judicial review of the High Court contained in Article 226 of the Constitution of India would vary from case to case, the nature of the order, the relevant statute as also the other relevant factors including the nature of power exercised by the public authorities, namely, whether the power is statutory, quasi judicial or administrative. The power of judicial review is not intended to assume a supervisory role or done the robes of om nipresent. The power is not intended either to review governance under the rule of law nor do the Courts step into the areas exclu sively reserved by the supreme lex to the other organs of the State. Decisions and actions which do not have adjudicative dis position may not strictly fall for considera tion before a judicial review Court. The lim ited scope of judicial review succinctly put are :
(i) Courts, while exercising the power of judicial review, do not sit in appeal over the decisions of administrative bodies.
(ii) A petition for a judicial review would lie only on certain well-defined grounds.
(iii) An order passed by an administra tive authority exercising discretion vested in it, cannot be interfered in judicial review unless it is shown that exercise of discre tion itself is perverse or illegal.
(iv) A mere wrong decision without any thing more is not enough to attract the power of judicial review; the supervisory jurisdic tion conferred on a Court is limited to see ing that Tribunal functions within the lim its of its authority and that its decisions do not occasions miscarriage of justice.
(v) The Courts cannot be called upon to undertake the Government duties and func tions. The Court shall not ordinarily interfere with a policy decision of the State. So cial and economic belief of a Judge should not be invoked as a substitute for the judg ment of the legislative bodies. (See Ira Munn v. State of Ellinois, 1876 (94) US (Supreme Reports) 113). The issue is accordingly answered that it is within the competence of this Tribunal to undertake judicial review under the circumstances as enumerated above.
16. Insofar as second issue is concerned, we take note of the following charge leveled against the applicant:-
The at the said Shri Mahipal Singh, ACP/Delhi Police while functioning as ACP/Ambedkar Nagar, Delhi during the year 2010 committed gross misconduct in as much as he acted in a partial manner, abused his powers and influenced his subordinates including Station House Officer CR Park Police Station to act against one Shri Vikas Bakshi and consequently a Kalandara u/s 91/93/97 of DP Act was lodged on 09.09.2010 against the said person, who was arrested in the matter and was accused of being under the influence of liquor and creating nuisance etc. However, subsequently, the Court discharged the accused from charges u/s 91 on the initial stage itself Moreover, medical test of the accused did not confirm consumption of liquor by the accused. Thus, the accused was falsely implicated of offences under section 91 of DP Act.
Thus, the said Shri Mahipal Singh, ACP/Delhi Police, by above acts of omission and commission failed to maintain professional integrity and exhibited the conduct unbecoming of a Government servant contravening thereby the provisions of Rule 3 of the CCS(Conduct) Rules, 1964. In other words, the applicant was charged with having directed his subordinates to act against the complainant Vikas Bakshi and for instituting Kalandra under Sections 91, 93, 97 of DP Act against the complainant. The kalandar against the complainant under Section 91 of the DP Act was considered and discharged by the Court of Metropolitan Magistrate. The MLC report also did not bear out any influence of liquor on the complainant. It is an admitted fact that the subordinates, who were charged with having acted under the wrongful order of the applicant, were all discharged. We have already noticed hereinabove that the complainant Vikas Bakshi had accused the applicant of having assaulted him in the Police Station. However, in the MLC, no injuries were found on his person. The complainant Vikas Bakshi had filed Criminal Writ No. 1820/2010 and Crl. MA 4976/2011, inter alia, seeking action against the applicant herein in not complying with the courts order dated 19.11.2009; quashing of charge against him under Sections 91/ 93/97 of Delhi Police Act, and imposition of costs wherein the Honble High Court vide its order dated 29.11.2011, noted that the applicant herein was charged with having misbehaved and assaulted the complainant. The Additional Commissioner of Police while agreeing with the findings of the inquiry officer, noticed as under:-
The departmental enquiry was entrusted to Sh. Rajesh Kumar, Addl. DCP/PCR/ (Ops.) and consequent upon the transfer it was transferred to Sh. Umesh Kumar, Addl. DCP/(G.A.)/PCR vide order No.DE-105/7596-7615/P.Cell(P-V)/Vig., dated 25.07.2012 for completing the same on day to day bsis and to submit his findings. The Enquiry Officer completed the same after observing all usal formalities and submitted his finding concluding therein that the charge leveled against the delinquents Inspr. Anil Dureja, No.D-I/651, Inspr. Sanjay Kumar Singh, No.D-2753 and SI Dhananjay Pratap Singh, No.D-1111 is proved.
I have gone through the findings of the E.O. statements of PWs/DWs/Defence statements of the delinquents as well as other material/record available on DE file. It has been found that the conclusion arrived in Vigilance enquiry seems to be in haste and without proper application of mind. He has failed to appreciate and invoke the provisions under sanction 134 and 138 of Delhi Police Act, 1978 which given immunity to a police officer from penalty for the action taken by him under the Act in good faith in pursuance of his lawful duties. The Honble Court of MM Saket, Dehi has already taken cognizance of the offences u/s 93/97 DP Act, 1978 against the complainant. As such, no conundrum regarding jurisdiction of police action against a person, already having a criminal history of five cases in different police stations in Delhi, creating ruckus in police station with the intention to provoke breach of peace, arises. Initiation of DE against the police officers on false and frivolous complaints by the persons having criminal antecedents, without judicious application of mind not only makes mockery of the police system but also jettisons the moral of police force due to unwarranted harassments.
Keeping in view of the totality of the facts and circumstances available on record, I am of the opinion that there was no malafide intention, negligence or dereliction in the discharge of their official duties on the part of the delinquents. Thus, I agree with the findings of the Enquiry Officer and exonerate Inspr. Anil Dureja, No.-D-I/651 (PIS No.16860075), Inspr. Sanjay Kumar Singh, No. D-2753 (PIS No. 16820042) and SI Dhananjay Pratap Singh, No. D-1111 (PIS No.169502707) of the charge.
We further take note of the fact that the charge against the applicant is of directing his subordinate officers of committing illegal act. However, it rests squarely upon the action of the applicant. The second part of the charge provides legs to the charge against the applicant. Therefore, it goes without saying that when the departmental proceedings qua subordinates of the applicant have already been dropped on the ground that no misconduct was proved against them and that the action taken against the complainant Vikas Bakshi was legal and justifiable, the legs have been removed from the charges against the applicant. If the action was legal and justifiable, then the charge against the applicant directing his subordinates to commit an illegal act cannot survive. If the action of the main actor is found justifiable and legal, then the action of the applicant directing the subordinate officers to act in that manner would also be justified.
17. We, however, find that the case of DP Ray Vs. MCD & Ors. is not applicable to the facts of the instant case, as they differ in facts. In the case of DP Ray Vs. MCD & Ors. (supra), the applicant was charged with not having joined duties and thereby disobeying the orders of transfer. It is different from issuing a wrongful command to commit an illegal act as in the instant case.
18. However, in conclusion, we can say that notwithstanding inapplicability of the case of DP Ray Vs. MCD & Ors. (supra) in the instant case, it is well proved that the subordinate officers of the applicant, namely, Anil Durega, Inspector/SHO/CR Park, Delhi Police, Sanjay Singh, Inspector and Delhi Police and DP Singh, Sub Inspector having been exonerated of the charges of committing a wrongful illegal act in departmental inquiry and their action being found legal as per law, whether the similar charge can stand against the applicant. It appears to us that proceeding against him on the same allegation is illusory and would serve no purpose. However, since by the impugned order the applicant has simply been called upon to show cause, he must first reply to the notice by showing cause before the concerned authority. The Apex Court in State of U.P. v Brahm Datt Sharma & another [(1987) 2 SCC 179] held that when a show cause notice is issued to a Government servant, ordinarily he should place his case before the concerned authority by showing cause, and that the courts should be reluctant to interfere with the notice unless the same is shown to have been issued palpably without any authority of law. It appears that pursuant to the impugned show cause notice, the applicant has already filed a reply on 23.01.2013, and nothing has been brought on record on behalf of the respondents as to whether the same has been considered objectively and appropriate decision is taken thereon or not. In the circumstances, we dispose of this matter with a direction that the applicant shall file his explanation to the impugned notice within two weeks from receipt of this order mentioning all the facts, especially that the action taken by his subordinates allegedly under his orders was found to be justified in a departmental proceeding, and those officials have already been discharged and the proceeding is dropped against them, yet he is to be proceeded departmentally on the same charge on which other officials have been exonerated. The respondents shall consider the same and pass a speaking order dealing with the submissions raised in the explanation within six weeks thereafter. However, we would like to emphasize that the Government or public sector undertakings being model employers, it is expected that they would not raise unsustainable grounds or decline relief to an employee on mere technicalities only with a view to protect their action not being justified in law. The respondents shall, therefore, examine the whole aspect of the matter and the points raised in the reply of the applicant to the show cause, and take appropriate decision expeditiously, preferably within a period of six weeks from the date of production of certified copy of this order. We need not emphasize that in the event the respondents do not find any substance in the explanation or reply furnished, they shall pass appropriate order and complete the inquiry, if initiated, against the applicant, within six months positively, provided the applicant co-operates and appears on the date fixed in the proceeding.
19. With the above order, this OA stands disposed of. However, there shall be no order as to costs.
(Dr. B.K. Sinha) (Syed Rafat Alam) Member (A) Chairman /lg/