Central Administrative Tribunal - Delhi
Inspector (Retd.) H.S. Saini vs Lieutenant Governor (Delhi) on 13 July, 2010
Central Administrative Tribunal Principal Bench OA No. 2794/2009 New Delhi, this 13th day of July, 2010 [[ HONBLE SH. L.K. JOSHI, VICE CHAIRMAN (A) HONBLE MRS. MEERA CHHIBBER, MEMBER (J) Inspector (Retd.) H.S. Saini, S/o Late Sh. B.R. Saini, R/o Akarshan Building, 16/10, Block-A-1, Sant Nagar, Burari, Delhi-110084. Applicant Applicant in person. Versus 1. Lieutenant Governor (Delhi), Govt. of NCT of Delhi, Through Chief Secretary, Delhi Secretariat, New Delhi. 2. The Commissioner of Police, Police Head Quarters, I.P. Estate, New Delhi. 3. Joint Commissioner of Police, Security Unit, Delhi Police, Police Head Quarters, New Delhi. 4. Sh. R.K. Verma, DCP/Supreme Court Security, Supreme Court, New Delhi. Respondents By Advocate : Ms. Rashmi Chopra. ORDER
By Honble Mrs. Meera Chhibber, Member (J) Applicant, who appeared in person, has challenged order dated 31.7.2008, whereby regular departmental enquiry was initiated against him by the competent authority on the following allegations:-
SUMMARY OF ALLEGATION On 19.2.04 Insp. H.S. Saini No.D-1/326 (PIS No.16690060) while posted in DIU/NE took over the investigation on the orders of senior officers, on receipt of orders of the court for reinvestigation. During investigation he searched for candidates of fake list allegedly sent by Employment Exchange to G.T.B. Hospital. On 26.2.04, he succeeded in tracing two suspects namely Darshan Kumar s/o Duli Chand & Neeraj s/o Ram Chander whose names were in the fake list sent to GTB Hospital. He interrogated and examined them u/s 161 Cr.p.c. as witness. On 27.2.04, he traced Jagmohan s/o Mangoo Ram, Rakesh s/o Ved Prakash (Rakesh later on arrested by Crime Branch who had appeared before the interview board on the basis of fake documents). He also interrogated them and examined u/s 161 Cr.p.c. as witness. On 28.2.04 Suresh Giri s/o Ram Kishan also traced, interrogated and examined as witness u/s 161 Cr.p.c. On 15.5.04 Subhash Giri & Rakesh Kumar, candidates of fake list joined investigation and their statements u/s 161 Cr.p.c. recorded as witness. Manoj Prashad, the mastermind of the episode moved an application for anticipatory bail in court of ASJ which was dismissed. On 17.6.04 accd. Manoj was arrested by Insp. H.S. Saini and produced in Court on the same day i.e. 17.06.2004 without properly interrogating him about the crime. No police remand was applied and Honble court released him on bail. He could have lead to recovery of other related records and vital information with regard to other staff of both the institutions involved in this crime. Vide letter No.F-16/44/E-II/96-97/GTBH/5602 dt. 5.5.04 addressed to H.S. Saini, it is mentioned that original diary register and dispatch registers were delivered to him. Both these registers containing pages 284 and 285 pages were not placed in the case file. Both the registers were important documents in the case. This act of I.O. Inspr. H.S. Saini is very suspicious.
The above act on the part of Inspector H.S. Saini No.D-1/326 amounts to gross misconduct reflect on the integrity and moral turpitude of Insp. and unbecoming of a member of police force which renders him liable to be dealt with departmentally under the provisions of Delhi Police (Punishment & Appeal) Rules, 1980.
2. It is submitted by the applicant that the allegations are absolutely wrong inasmuch as the investigating officer applicant was authorized in examining and reducing the statement in writing under Section 161 of Cr. P.C., therefore, there is nothing wrong in recording the statements of Darshan Kumar S/o Shri Duli Chand and Neeraj S/o Ram Chander. As far as question of granting the bail is concerned, it is the prerogative of the Metropolitan Magistrate to decide as to whether bail is to be granted to an accused or not. Simply because the bail was granted by the Metropolitan Magistrate to the accused, it cannot be termed as a misconduct against the applicant. He had thoroughly interrogated the accused Manoj and had even recorded his disclosure statement. Since no recovery was effected from Manoj, there was no need to request for his police remand. Initially he had been sent to judicial custody up to 1.7.2007 but the bail was granted by the Metropolitan Magistrate, therefore, it cannot be termed as a misconduct. Moreover, in the allegation it is stated that pages 284 and 285 are missing in the case file, whereas, the Metropolitan Magistrate has clarified in order dated 30.6.2009 (page 158) that the documents, i.e., the diary and dispatch registers containing 284 and 285 pages regarding FIR No. 366/1998 PS Seemapuri are lying on judicial record till date, i.e. 30.6.2009. He thus submitted that the basis of allegations is totally wrong. The allegations are not sustainable in law, therefore, the departmental enquiry may be quashed at the initial stage itself.
3. Counsel for the respondents explained the brief facts as follows:-
In the year 1998, a case FIR No.366/1998 u/s 420 / 465 / 468 / 471 / 120-B/IPC, PS Seema Puri, Delhi was registered on a complaint of sending fake list of candidates by Employment Exchange to G.T.B. Hospital. During the period from 15.06.1998 to 02.09.1998 the case was investigated by S.I. Prabha Shankar. Thereafter the case was transferred to S.I. Dhiraj Singh for further investigation on 20.10.1998 who investigated the case from 20.10.1998 to 11.09.2000. He collected documents/records of evidence from G.T.B. Hospital and Employment Exchanges and arrested 3 accused persons namely Shamsher Singh, Sher Singh and Naresh Chand Joshi of Employment Exchange. Further, the case was investigated by S.I. Anand Prakash (now retired) from 19.10.2000 to 24.04.2001 who drafted the charge-sheet without complete investigation of the case which was filed in the court after rectifying the objections of Prosecution Branch on 24.04.2001. Afterwards, on 19.02.2004, on the orders of the Court, the re-investigation of the case was entrusted to Inspector H.S. Saini (hereinafter referred to as, the applicant), Inspector/DIU/North-East District. The case was reinvestigated by him from 19.02.2004 to 22.07.2004. On 17.06.2004, the applicant arrested one accused Manoj of G.T.B. Hospital and traced the whereabouts of one Kalyan Sahai Meena of Employment Exchange who allegedly charged Rs.5000/- from each candidate of fake-list for sending their names to G.T.B. Hospital. Neither the applicant arrested Kalyan Sahai Meena nor thoroughly interrogated Manoj. The applicant produced Manoj in the Court on the same day i.e. 17.06.2004 without properly interrogating him and no police remand was applied for Manoj. As such, the court released him on bail. Further the case was investigated by S.I. Dinesh Dahiya from 11.09.2004 to 16.05.2005 and he arrested Kalyan Sahai Meena of Employment Exchange. SI Dinesh Dahiya obtained his specimen handwriting and sent to FSL for comparison and examined one candidate Janmohan of fake-list. Afterwards, on 25.09.2005, supplementary charge sheet was signed by Inspr. N.S. Panwar, SHO/Seema Puri. On 11.01.2008, DCP/North-East District got conducted enquiry regarding improper investigation of the case by the subsequent responsible I.Os i.e. the applicant/Ins. H.S. Saini, S.I. Dinesh Singh, Inspr. Narender Pal, subsequent SHOs/Seema Puri and S.I. Dhiraj Singh, PS Seema Puri and informed to Sh. Lalit Kumar, M.M. that action against the erring officers is being taken. Afterwards a vigilance enquiry was ordered by C.P./Delhi for examining the role of each I.O. in details, which was completed on 11.07.2008. On conclusion of Vigilance Enquiry, the applicant/Ins. H.S. Saini, Inspr. Satbir Singh, S.I. Dinesh Dahiya and S.I. Dheeraj were found responsible for serious lapses in the investigation of case FIR No.366/98 P.S. Seema Puri and DE against them was ordered in accordance with the law.
4. She submitted that the OA is not maintainable at this stage as enquiry is yet to be concluded. The law is well settled that court should not interfere at the initial stage of the enquiry because the Inquiry Officer has yet to give his findings based on the basis of evidence adduced in the enquiry. In the enquiry full opportunity would be given to the applicant to defend his case. If any observations are made by the court at this stage, it would amount to pre-deciding the issue. She has thus prayed that the OA may be dismissed with a direction to the applicant to co-operate in the enquiry so that the enquiry may be completed within a reasonable period. She also submitted that applicant has himself stated in para 4.23 to 4.26 as follows:-
That during the course to time, a new development took place when the applicant was called by M.M. Shri Lalit Kumar, Karkardooma Courts, on 30.5.2009 in case FIR No.46/2000. P.S. Seema Puri, the applicant happened to mention to the Honble Courts about the registers bearing pages No.284 & 285, police file including case diaries in the instant case FIR No.366/98 allegedly not handed over by the applicant to the next I.O. and which were stated to be missing and on the allegations of which, the instant departmental enquiry was being conducted against the applicant.
That the applicant later on gave an application to the Honble M.M.Shri Lalit Kumar, Karkardooma Court to pass such orders as may confirm the presence and availability of the alleged missing documents on the judicial filed or vice versa.
That the Honble M.M. issued orders in this regard giving the confirmation of the availability of the alleged missing documents. The certified copy of the order, passed by the Honble M.M. Shri Lalit Kumar is annexed as Annexure A-17 which means it is a subsequent development, therefore, let him place all these facts before the Inquiry Officer so that final decision may be taken in the matter by the competent authority.
5. We have heard both the parties and perused the pleadings as well.
6. Law is well settled by the Honble Supreme Court that courts should not interfere at the initial stage of enquiry because it is premature. It is the prerogative of the disciplinary authority to first decide the matter on the basis of the evidence which comes on record.
7. At this juncture, it would be relevant to refer to the judgment of Honble Supreme Court in the case of Union of India and others vs Upendra Singh reported in 1994 (3) SCC 357, it was held as under:
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.
8. In the case of Union of India and Another vs Ashok Kacker reported in 1995 Supp (1) SCC 180, it was held as under:
The respondent has the full opportunity to reply to the charge-sheet and to raise all the points available to him including those which are now urged on his behalf. This was not the stage at which the Tribunal ought to have entertained such an application for quashing the charge-sheet and the appropriate course for the respondent to adopt is to file his reply to the charge-sheet and invite the decision of the disciplinary authority thereon.
9. In the case of District Forest Officer vs R. Rajamanickam and another reported in 2000 (9) SCC 284, the facts were that the appellant after making an inquiry served separate charge sheets on the respondents asking them to file an explanation in respect of the charges levelled against them. The matter was inquired into by the appellant by examining the witnesses in support of the charges and also witnesses examined by the delinquent officer in their defence. Before any final order could be passed the respondents approached the Tamil Nadu Administrative Tribunal, Chennai against issuance of charge sheet against them and inquiry initiated in pursuance thereof. The Tribunal after entertaining those original applications, by an interim order restrained the appellant from passing any final order consequent upon the inquiry conducted by the appellant. Subsequently when the matter came up for hearing the Tribunal went into the exercise of finding out the correctness or otherwise of the charges levelled against the respondents. The Tribunal re-evaluated and reassessed the evidence and came to the finding that the charges levelled against the respondents are not proved and, therefore, the Tribunal quashed the charge-sheets issued against the respondents. Reference was made to the case of Union of India and others vs Upendra Singh and it was held as follows:
The Tribunal was not justified under law to interfere with the correctness of the charges levelled against the delinquent officer.
10. In view of above, the settled position is Courts/Tribunal should not entertain cases at the stage of issuance on charge-sheet or summary of allegation in this case. After all the very object of holding an enquiry is to fid out the truth by giving opportunity to the delinquent to defend himself, therefore, he is required to place his defence before the Inquiry Officer.
11. In the instant case applicant has produced an order passed by the Metropolitan Magistrate dated 30.6.2009 which shows that the diary and dispatch register contains pages 284 and 285 are lying in the judicial custody whereas the allegation is these pages were missing from the case file. This is definitely a subsequent development and applicant could have placed the order before the Inquiry Officer. When we asked the applicant as to why he did not produce all these things before the Inquiry Officer, he stated the Inquiry Officer would not do the right thing, he would definitely prove the charge against him and IPS officers have ego problem. They do not even consider the contentions made by the subordinate officers.
12. We do not approve of this attitude of the applicant because applicant is only presuming things against him without any valid reasons. This can at best be termed as his imagination. After all when enquiry is ordered, report is to be given on the basis of evidence which is placed before the Inquiry Officer. Similarly disciplinary authority takes final decision on the basis of evidence which comes on record. He cannot pass the orders on mere ipsi dixit, therefore, the notions of the applicant are not sustainable in law. Applicant has not been able to show that the summary of allegation is issued due to any mala fides or due to any extraneous considerations. Nor is it the case of the applicant that the Departmental Enquiry/summary of allegation has been issued by an incompetent authority on which grounds alone court can interfere at the stage of issuance of charge-sheet/summary of allegation, therefore, there is no justification to interfere at this stage.
13. The enquiry was initiated way back in July, 2008, applicant should allow the proceedings to start, so that it may reach a logical conclusion. It goes without saying that he would have full opportunity to defend himself by placing on record the evidence in his defence or cross examine the prosecution witnesses, who appear before the Inquiry Officer. It would be in the interest of applicant himself to appear before the Inquiry Officer and cooperate in completing the enquiry. In case applicant is aggrieved by the final orders passed by the disciplinary authority, it would be open to him to challenge the orders by taking all the grounds which are available to him in law. We would like to clarify that we have not dealt with any of the contentions raised by the applicant on merit.
14. OA is dismissed as premature with liberty as aforesaid. No costs.
(MRS. MEERA CHHIBBER) (L.K. JOSHI)
MEMBER (J) VICE CHAIRMAN (A)
Rakesh