Central Administrative Tribunal - Delhi
Lalit Joshi vs Govt. Of Nct & Ors. Through on 18 November, 2014
Central Administrative Tribunal Principal Bench New Delhi O.A.No.747/2013 Order Reserved on: 11.09.2014 Order pronounced on 18.11.2014 Honble Shri V. Ajay Kumar, Member (J) Honble Shri V. N. Gaur, Member (A) Lalit Joshi S/o Late Sh. P.D.Joshi R/o F-826, Govt. Flats Timar Pur, Delhi. Applicant (By Advocate: Shri M.K.Bhardwaj) Versus Govt. of NCT & Ors. through 1. The Commissioner of Police Police HQ, IP Estate New Delhi. 2. The Joint Commissioner of Police Northern Range MSO Building IP Estate New Delhi. 3. The Dy. Commissioner of Police North West Distt. Delhi. Respondents (By Advocate: Ms. Renu George) O R D E R By V. Ajay Kumar, Member (J):
Questioning the imposition of a minor penalty of `censure, the applicant, an Inspector of Delhi Police, filed the present OA.
2. A Show Cause Notice dated 19.11.2010 (Annexure A3) was issued to the applicant calling upon him as to why his conduct should not be censured for the following lapse:
An explanation calling notice was issued to Inspr. Lalit Joshi, SHO/Bharat Nagar vide this office No.6478-79/SO-DCP/NWD dated 20.10.2010 on the allegation that on 19.10.2010 one complainant Sh. K.N.Malhotra r/o A-I/2, Shakti Nagar Extension Ashok Vihar met the undersigned and submitted a complaint that on 18.10.2010 at about 2.00 P.M. three persons aged about 20 to 24 years, have tried to kidnap his grandson namely Divyanshu Malhotra from his school. Accused persons forcibly picked up the boy from outside the boundary wall of school premises and forced him to sit in between two persons in the motorcycle and ran away from the spot taking route of main road towards Railway Bridge which leads to G.T.Road. Fortunately on the way motorcycle slipped and on the outcry of boy, people save him from the clutches of kidnappers, however all the accused persons managed to flee away from the spot. It is further alleged that despite request to lodge FIR in this regard, no FIR was lodged by the staff of PS Bharat Nagar.
It has further been observed that SHO/Bharat Nagar neither visited the spot nor briefed the ACP and DCP as the incident was serious in nature. As informed by ACP/Ashok Vihar only HC attended the call who did primarily enquiry about the incident which shows that SHO/Bharat Nagar is not taking his work sincerely.
In response to explanation calling notice issued to Inspr. Lalit Joshi, SHO/Bharat Bagar, he has stated that case FIR No.245/10 u/s 302/307/34 IPC PS bharat Nagar is under investigation by him and on 18.10.2010, he had departed to Rohini Court in c/w J/C Remand of accused persons and investigation for seeking date of TIP. At the relevant time viz 3.37 PM when the call was made he was in Rohini Court and Addl. SHO/ATO Bharat Nagar was in the police station. He came to Police Station only at 10.55 P.M. after investigation of above mentioned FIR and patrolling in the area. HC Ram Rattan was entrusted the call by DO who had told him about the incident. He further stated that complainant had asked him to intensify the patrolling around the area so that such incidents could not be repeated and he did not want any action in this regard. He then directed I.O. to contact childs parents and record the statement of child. Since the time was odd HC Ram Rattan, I.O. tol that he would apprise him about the details and action taken in the morning. On 19.10.2010 he proceeded to Tihar Jail for conducting the TIP of accused Amit Maan arrested in the above case. The TIP could only be conducted in after noon as Ld MM arrived late in the Jail. HC Ram Rattan who was entrusted with the task of recording the statement of Parents and the child kidnapped, absented himself. Later, he was apprised by ACP/A.Vihar telephonically that the investigation into the incident of kidnapping was entrusted to SI Satpal. A case was registered after the child come back to home from school. He further stated that since he was not in the police station as the call was serious in nature it could have at least been attended by Addl. SHO ATO PS Bharat Nagar. On the other hand HC Rm Rattan also did not apprise Addl. SHO of the details at that time. When he came back in police station the complainant satisfied and did not want any action. After coming from the TIP Proceeding Complainant Smt. Sonia told him that since he was not present in the police station on the relevant time, she went to the office of DCP/NWD. In the last he has stated that the complainant now has been apprised of the progress of case. Portrait of possible kidnappers were got prepared from Crime Branch. Dossier of suspected criminals were shown to the child and it has been found that One Deepak s/o Devender Pal s/o WZ-637, Roshi Nagar, Rani Bagh (Dossier No.1562) to be one of his kidnapper. The written reply submitted by Inspr. Lalit Joshi, SHO/Bharat Nagar is not found to be satisfactory.
The above act on the part of Inspr. Lalit Joshi, SHO/Bharat Nagar amounts to grave misconduct, negligence, in action as well as lackadaisical approach in the discharge of his official duties as the case FIR No.257 u/s 365/34 IPC was registered only on 19.10.2010 on the intervention of the senior officers when the complainant had appeared before the undersigned.
3. The applicant submitted his reply vide Annexure A4, which is stated to be submitted on 13.01.2011, to the said Show Cause Notice, denying the charge levelled against him, and the relevant paras of which reads as under:
In this regard, the submission made by the undersigned follows as under:-
On that day, i.e. 18-10-2010, being the I.O. of case FIR No.245/10 u/s 302/307/34 IPC, PS Bharat Nagar, the undersigned visited Rohini Courts in connection with J/C remand of accused persons as well as getting fixed a date for TIP. The date for TIP was fixed for next day i.e. 19-10-2010.
At the point of time in question i.e. 03.27 PM, when the call was made, undersigned was in the Rohini Courts, however, Addl. SHO/PS Bharat Nagar was present in the police station.
The undersigned reached back at PS only at 10.55 PM after the investigation of above mentioned case as well as patrolling in the area and learnt about the above mentioned attempt of kidnapping. Undersigned also came to know that the call was marked to HC Ram Rattan for necessary action.
The undersigned immediately called HC Ram Rattan to get the development in the matter who told that the complainant has asked him to intensify the patrolling in the area so that such incidents could not be repeated and that he did not want any action in this regard.
Not satisfied with the answer of HC Ram Rattan, undersigned directed him to again contact the childs parents and to record the statement of the child. Since the time was odd, HC Ram Rattan told that he would apprise undersigned about the details and action taken in the morning.
On 19-10-2010, as fixed by the Honble Court, undersigned proceeded to Tihar Jail for conducting the TIP of accused Amit Maan, arrested in case FIR No.245/10 u/s 302/307/34 IPC, PS Bharat Nagar.
The TIP could only be conducted in the late afternoon as Ld. MM arrived late in the jail. HC Ram Rattan, who was entrusted with the task of recording the statements of the parents and the child kidnapped, absented himself. He was therefore, marked absent accordingly.
In the meantime, ACP/Ashok Vihar was telephonically contacted by the undersigned and the call was marked to SI Satpal Singh for further necessary action who recorded the statement of child when he came back from the school and got a case u/s 363/511/34 IPC registered. The investigation of the case is in progress.
4. However, the disciplinary authority vide its Order dated 21.03.2011 (Annexure A1) having not satisfied with the reply submitted by the respondents confirmed the Show Cause Notice and imposed the penalty of censure on the applicant and the relevant portion of the said order reads as under:
. In response to reply of show cause notice for censure issued to him, he has reiterated the same pleas whatever, he had already submitted in the written reply to explanation calling notice issued to him. He further adduced that on the day of incident i.e., on 18.10.2010, he was neither present in the police station nor he was aware of the incident till late in the evening. As soon as he came to know about the incident he not only deputed HC Ram Rattan and later SI Satpal to investigate the matter but also kept track of their working while himself being present at Tihar Jail for TIP. He remained touch with the parents of the child and personally apprised them of the investigation and showed their satisfaction into the investigation taken up.
I have carefully gone through the relevant file i.e., show cause notice, written reply of Inspr. Lalit Joshi, SHO/Bharat Nagar as well as heard him in orderly room on 4.3.2011. During orderly room, he had reiterated the same pleas whatever, he had already submitted in the written reply to the show cause notice for censure issued to him but the pleas taken by Inspr. Lalit Joshi are not found to be satisfactory as it was a serious matter in which a school going boy was kidnapped by the accused person but it was dealt in a casual manner which encouraged the criminals to commit the crime in the area. The criminal case in question was registered only on the intervention of senior officers. Hence, the plea taken by Inspr. Lalit Joshi, SHO/Bharat Nagar in his written as well as oral submission is not pardonable. Therefore, the show cause notice issued to Inspr. Lalit Joshi, SHO/Bharat Nagar is confirmed. As such his conduct is hereby censured for the above said lapse.
5. The appeal preferred by the applicant against the order of the disciplinary authority was also dismissed by the appellate authority vide its order dated 07.09.2012 (Annexure A2).
6. Heard Shri M.K.Bhardwaj, the learned counsel for the applicant and Ms. Renu George, the learned counsel for the respondents, and have perused the pleadings on record, including the departmental record.
7. The learned counsel for the applicant while reiterating the facts, as mentioned in the reply of the applicant to the Show Cause Notice, would mainly contend that the applicant was punished by the respondents on the ground of his failure to attain highest standards of efficiency but not for any specific unlawful behaviour in relation to discharge of his duty, and the same is illegal as per the law declared by the Honble Apex Court in Union of India v. J.Ahmed, AIR 1979 SC 1022 and in Inspector Prem Chand v. Govt. of NCTD & Others, JT 2007(5) SC 294.
8. On the other hand, the learned counsel for the respondents, while submitting that the incident of attempt to kidnap of the child of the complainant - Shri K.N.Malhotra was occurred on 18.10.2010 and though, admittedly, he approached the PS Bharat Nagar, for which the applicant was the SHO, on the same day, and in spite of his request to lodge the FIR, no FIR was lodged till the intervention of the higher officials. Further, even as per the applicant, he came to the Police Station on 18.10.2010 at 10.55 PM and that the Head Constable Ram Rattan told him about the incident, he failed to register the FIR on that day and also till the intervention of the higher officials, basing on a complaint. This itself constitutes the misconduct of the applicant as he has utterly failed to discharge his duties. Therefore, it cannot be said that not registering the FIR in a serious offence of kidnapping of a child in time and not visiting the place of offence within a reasonable time, is a simple negligence or inefficiency. Therefore, the judgements cited by the applicant have no application to the facts of the present case.
9. The crime occurred is an attempt to kidnap a child in broad day light and the said attempt was failed due to the slipping of the motor cycle on which the accused were forcefully taking away the boy and that the people who heard outcries of the boy saved him from the clutches of kidnappers, and that the accused managed to flee away from the spot. This is a serious crime under Sections 365/34 IPC. Even the contention of the applicant is accepted that he was away from the Police Station due to the reasons mentioned by him in his reply till 10.55 PM on the date of occurrence of the incident, but no valid explanation is forthcoming from him that why an FIR could not be registered either by him or by his staff till the intervention of the higher officials. It is also not his case that he was not aware of the incident till the registration of the FIR. Further, being the SHO, he failed to inspect the place of occurrence of the incident. Therefore, as rightly contended by the learned counsel for the respondents, that the act of the applicant is a clear misconduct, dereliction of duties and cannot be termed as a mere negligence simpliciter or inefficiency.
10. In this regard, it is relevant to note the following observations made by the Honble Apex Court in Ravi Yashwant Bhoir v. District Collector, Raigad and Others, (2012) 4 SCC 407, wherein both the decisions, relied upon by the applicants counsel, i.e., J. Ahmed (supra) and Inspector Prem Chand (supra), were considered:
MISCONDUCT:
11. Misconduct has been defined in Black's Law Dictionary, Sixth Edition as:
"A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behavior, wilful in character, improper or wrong behavior, its synonyms are misdemeanor, misdeed, misbehavior, delinquency, impropriety, mismanagement offense, but not negligence or carelessness."
Misconduct in office has been defined as:
"Any unlawful behavior by a public officer in relation to the duties of his office, wilful in character. Term embraces acts which the office holder had no right to perform, acts performed improperly, and failure to act in the face of an affirmative duty to act."
12. P. Ramanatha Aiyar's Law Lexicon, Reprint Edition 1987 at page 821 defines `misconduct' thus:
"The term misconduct implies a wrongful intention, and not a mere error of judgment. Misconduct is not necessarily the same thing as conduct involving moral turpitude. The word misconduct is a relative term, and has to be construed with reference to the subject matter and the context wherein the term occurs, having regard to the scope of the Act or statute which is being construed. Misconduct literally means wrong conduct or improper conduct. In usual parlance, misconduct means a transgression of some established and definite rule of action, where no discretion is left, except what necessity may demand and carelessness, negligence and unskilfulness are transgressions of some established, but indefinite, rule of action, where some discretion is necessarily left to the actor. Misconduct is a violation of definite law; carelessness or abuse of discretion under an indefinite law. Misconduct is a forbidden act; carelessness, a forbidden quality of an act, and is necessarily indefinite. Misconduct in office may be defined as unlawful behaviour or neglect by a public officer, by which the rights of a party have been affected."
Thus it could be seen that the word `misconduct' though not capable of precise definition, on reflection receives its connotation from the context, the delinquency in its performance and its effect on the discipline and the nature of the duty. It may involve moral turpitude, it must be improper or wrong behaviour; unlawful behaviour, wilful in character; forbidden act, a transgression of established and definite rule of action or code of conduct but not mere error of judgment, carelessness or negligence in performance of the duty; the act complained of bears forbidden quality or character. Its ambit has to be construed with reference to the subject matter and the context wherein the term occurs, regard being had to the scope of the statute and the public purpose it seeks to serve....".
(See also: State of Punjab & Ors. v. Ram Singh Ex. Constable, AIR 1992 SC 2188).
13. Mere error of judgment resulting in doing of negligent act does not amount to misconduct. However, in exceptional circumstances, not working diligently may be a misconduct. An action which is detrimental to the prestige of the institution may also amount to misconduct. Acting beyond authority may be a misconduct. When the office bearer is expected to act with absolute integrity and honesty in handling the work, any misappropriation, even temporary, of the funds etc. constitutes a serious misconduct, inviting severe punishment. (Vide: Disciplinary Authority-cum-Regional Manager & Ors. v. Nikunja Bihari Patnaik, (1996) 9 SCC 69; Government of Tamil Nadu v. K.N. Ramamurthy, AIR 1997 SC 3571; Inspector Prem Chand v. Govt. of NCT of Delhi & Ors., (2007) 4 SCC 566; and State Bank of India & Ors. v. S.N. Goyal, AIR 2008 SC 2594).
14. In Government of A.P. v. P. Posetty, (2000) 2 SCC 220, this Court held that since acting in derogation to the prestige of the institution/body and placing his present position in any kind of embarrassment may amount to misconduct, for the reason, that such conduct may ultimately lead that the delinquent had behaved in a manner which is unbecoming of an incumbent of the post.
15. In M.M. Malhotra v. Union of India & Ors., AIR 2006 SC 80, this Court explained as under:
".......It has, therefore, to be noted that the word 'misconduct' is not capable of precise definition. But at the same time though incapable of precise definition, the word 'misconduct' on reflection receives its connotation from the context, the delinquency in performance and its effect on the discipline and the nature of the duty. The act complained of must bear a forbidden quality or character and its ambit has to be construed with reference to the subject-matter and the context wherein the terms occurs, having regard to the scope of the statute and the public purpose it seeks to serve."
A similar view has been reiterated in Baldev Singh Gandhi v. State of Punjab & Ors., AIR 2002 SC 1124.
16. Conclusions about the absence or lack of personal qualities in the incumbent do not amount to misconduct holding the person concerned liable for punishment. (See: Union of India & Ors. v. J. Ahmed, AIR 1979 SC 1022).
17. It is also a settled legal proposition that misconduct must necessarily be measured in terms of the nature of the misconduct and the court must examine as to whether misconduct has been detrimental to the public interest. (Vide: General Manager, Appellate Authority, Bank of India & Anr. v. Mohd. Nizamuddin AIR 2006 SC 3290).
18. The expression `misconduct' has to be understood as a transgression of some established and definite rule of action, a forbidden act, unlawful behaviour, wilful in character. It may be synonymous as mis-demeanour in propriety and mismanagement. In a particular case, negligence or carelessness may also be a misconduct for example, when a watchman leaves his duty and goes to watch cinema, though there may be no theft or loss to the institution but leaving the place of duty itself amounts to misconduct. It may be more serious in case of disciplinary forces.
19. Further, the expression `misconduct' has to be construed and understood in reference to the subject matter and context wherein the term occurs taking into consideration the scope and object of the statute which is being construed. Misconduct is to be measured in the terms of the nature of misconduct and it should be viewed with the consequences of misconduct as to whether it has been detrimental to the public interest. (Emphasis supplied)
11. In view of the above legal position, and in the totality of facts in the OA, the contention of the applicant that non-registering the FIR and not inspecting the place of occurrence of the crime, cannot be termed as mere negligence or lack of high standard of efficiency or due to the pressure of other more important work.
12. In the circumstances and for the aforesaid reasons, the OA is devoid of merit and is accordingly dismissed. No costs.
Registry is directed to return the departmental record to the respondents.
(V. N. Gaur) (V. Ajay Kumar) Member (A) Member (J) /nsnrvak/