Central Administrative Tribunal - Delhi
Sunil Kumar S/O Shri Prahlad Singh vs Joint Commissioner Of Police on 29 July, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA-1026/2014 Order Reserved on 08.05.2015 Order Pronounced on: 29.07.2015 Honble Mr. Sudhir Kumar, Member (A) Honble Mr. Raj Vir Sharma, Member (J) Sunil Kumar S/o Shri Prahlad Singh (Head Constable No. 105/NE (PIS No.28961155) R/o Village Turkiawas, District, Rewari, Haryana-122502. -Applicant (By Advocate: Mr. Arvind Seth with Mr. Pradeep Kumar Saini) Versus 1. Joint Commissioner of Police, Eastern Range, Delhi Police Head Quarters, ITO, Delhi. 2. Additional Deputy Commissioner of Police, North-East District, Seelam Pur, New Delhi 110053 -Respondents (By Advocate: Ms. Harvinder Oberoi) O R D E R Per Sudhir Kumar, Member (A):
The applicant is before this Tribunal because he was awarded a punishment of forfeiture of four years approved service permanently vide Appellate Authoritys order dated 18.09.2013 (Annexure A-1), by which an appeal preferred by him against the Disciplinary Authoritys order dated 07.11.2012 (Annexure A-2) has been rejected. The applicant has declared that the OA has been filed within the period of limitation as prescribed under section 21 of the Administrative Tribunals Act, 1985.
2. The applicant was appointed in Delhi Police as Constable on 15.07.1996, and was promoted as Head Constable on 30.03.2008, and has submitted that he has had an unblemished record. He got married on 19.04.2006 but due to some misunderstandings, his wife returned to her parental home, and when, even after the birth of a child to her, she did not return, the applicant filed a Petition for the restitution of conjugal rights under section 9 of the Hindu Marriage Act, 1955. The applicant has submitted that in a process of retaliation, his wife filed a complaint, making allegations against him and his parents for harassment, torture, misbehaviour, demand of dowry, and beatings, which led to an FIR No.291/2009 being registered against the applicant and his parents under sections 498-A/406/34 of IPC at Police Station, Sultan Puri, New Delhi on 31.08.2009.
3. The respondents ordered a Departmental Enquiry (DE, in short) against the applicant on the basis of the allegations made by his wife in the said FIR, through their order dated 25.02.2011, alleging gross misconduct, gross-negligence, carelessness, inaction and dereliction in the discharge of his official duties, rendering him unbecoming of police officer, and liable to be dealt with departmentally under the provisions of Delhi Police (Punishment & Appeal) Rules, 1980 (DPPA Rules, 1980, in short).
4. In the D.E., the Enquiry Officer recorded statements of witnesses, and as per the provisions of the DPPA Rules, 1980, the applicant was thereafter served with a formal charge dated 22.08.2012, stating that his actions amount to gross misconduct, indisciplined behaviour, and conduct unbecoming of a police officer. After taking on record and considering the defence statement of the applicant, the Enquiry Officer thereafter returned his findings of the charge against him having been proved. The applicant made a representation to Disciplinary Authority against the findings of the Enquiry Officer, yet the Disciplinary Authority awarded him the punishment through order dated 07.11.2012, as already mentioned above, and the appeal against that order was also dismissed through the impugned order of the Appellate Authority dated 18.09.2013 (supra).
5. The applicant has questioned these actions on the part of the respondents as having been outside the ambit of the DPPA Rules, 1980. He has further taken the ground that the order of award of punishment is contradictory to the charge as framed against him, and while the DE had been initiated against him because of registration of FIR, which had alleged gross misconduct etc. on his part, the punishment order is, on the other hand, based on a completely new ground/reason stating that the delinquent has involved himself in a criminal case which could have been avoided by him, being a member of the disciplined force. He has questioned the findings of the Enquiry Officer, and his discussion on the evidence produced before him, on the grounds that the allegations as made by his wife against him have not been proved, and, secondly, no conduct of his is responsible for the criminal case having been registered against him by his wife. He has submitted that even the Enquiry Officer had found that the allegations made by his wife in the FIR are vague in nature, and are found in all Section 498A IPC cases, and in so far as the allegation of beating etc., the Enquiry Officer had found no proof of it. The applicant has, therefore, taken the ground that no action of his amounted to gross misconduct, or indisciplined behaviour, and conduct unbecoming of a police officer in discharge of his official duties.
6. It has been further submitted that there is no finding of misconduct arrived at against him within the DPPA Rules, 1980. He has pointed out that the Honble Apex Court has in the case of Inspector Prem Chand vs. Govt. of NCT of Delhi (2007) 4 SCC 566, explained the term misconduct, and his actions cannot be said to fall within that definition. He also submitted that the ratio as laid down by the Honble Apex Court in the above case makes it clear that in order to subject the delinquent official to disciplinary proceedings, the act of the delinquent must be willful in nature, while, on the contrary, it is his wife who has registered an FIR against him, in retaliation of a Petition filed by him under section 9 of the Hindu Marriage Act, 1955, in order to bring his wife back to her matrimonial home, when she had refused to return with him.
7. The applicant took the further ground that the respondents have completely ignored the findings of the Enquiry Officer that the real cause of the dispute between the applicant and his wife was that he wanted to be a little loyal to his old aged parents, while his wife wanted to create a nuclear family, and that such an act on the part of the applicant can by no stretch of imagination be held to be a misconduct or indisciplined behaviour. He further took the ground that the respondents have failed to follow the statutory requirement of Rule 16 (xii)(c) of the DPPA Rules, 1980. He, therefore, submitted that even though there was a specific charge of indisciplined behaviour, and conduct unbecoming of a police official before the Enquiry Officer, no finding has been returned by the Enquiry Officer in respect of the said charge, and in the absence of any misconduct on his part, the impugned orders are liable to be quashed. In the result, he had prayed for the following reliefs:-
a) that the orders passed by the Respondents vide order dated 07/11/2012 (Annexure A-1) and order dated 18/09/2013 (Annexure A-2), be quashed and set aside being illegal, arbitrary, irrational and discriminatory and offending Article 16 of the Constitution of India; and
b) that this Honble Tribunal may pass any other order/relief/direction to which it may deem just and proper in the circumstances of the case; and
c) cost of the original application may also be awarded in favour of the applicant and against the respondents.
8. The respondents filed their counter reply on 07.08.2014. Their contention was that DE had been properly conducted, in accordance with the provisions of the said DPPA Rules, 1980, and they had thereafter narrated the contents of the FIR, containing allegations of demand of dowry and merciless beating of his wife by the applicant and his parents, and submitted that such actions amount to gross-misconduct, gross negligence, carelessness, inaction and dereliction in discharge of his official duties, attracting the said DPPA Rules, 1980, and making him liable to be dealt with departmentally under those Rules.
9. It was pointed out that the Enquiry Officer had served upon the applicant on 29.03.2011 the summary of allegations, list of witnesses, list of documents and Memoranda to be relied upon, and he was asked to furnish the name of his Defence Assistant, which opportunity he did not avail of. It was pointed out that Enquiry Officer had been changed twice for conducting the DE because the applicant/delinquent dragged on the D.E., and did not join the DE proceedings on several dates. Seven Prosecution Witnesses out of eight who had been named were examined, and opportunity was given to the delinquent/applicant before us to cross-examine them, whereafter the charge was drafted by the Enquiry Officer, got approved from the Disciplinary Authority, and served upon the applicant/delinquent, and he was asked to submit his Defence, and Witnesses. It was submitted that he neither appeared before the Enquiry Officer, nor submitted any Defence Witnesses after serving of the charge, and he also did not submit any defence statement for quite some time, till 14.09.2012. It was admitted that the Enquiry Officer submitted his findings to the Disciplinary Authority on 04.10.2012, concluding that the charges against the applicant stand proved.
10. Agreeing with the Enquiry Officer, the E.O.s findings were served upon the applicant, with directions to file a representation, if any, and he submitted his representation against the E.O.s findings on 22.10.2012. He was heard in the Orderly Room by the Disciplinary Authority on 31.10.2012, and even the written representation given by him to the Disciplinary Authority was considered, and all the pleas taken by him were also considered. The respondents denied that the applicant was not given an opportunity to cross-examine his wife, his Father-in-law, who has since expired, and his Mother-in-law. It was submitted that he was given an opportunity to cross-examine them, but he denied to avail of the same, which reflects his attitude that he had taken the institution of marriage very lightly. It was submitted that when it was found that the evidence of PW-8 had not been considered in the correct perspective by the Enquiry Officer while submitting his report, the entire evidence, and the discussion of the evidence by the Enquiry Officer, had been considered by the Disciplinary Authority, and still, since the Disciplinary Authority was not inclined to inflict severest of punishment upon the applicant/delinquent, he had been awarded a punishment of only forfeiture of four years of approved service permanently. It was submitted that thereafter when the applicant had submitted his appeal against the said order of punishment, even the Appellate Authority had also heard him in the Orderly Room, but his contentions were not found convincing enough, and, therefore, the appeal was rejected.
11. In response to the grounds, it was submitted by the respondents that as per Standing Order No.125/2010 (Annexure-20), when a criminal case had been registered, a parallel disciplinary proceedings can also be initiated simultaneously, which cannot be kept pending due to pendency of such criminal proceedings, even if the evidence in both the D.E. and criminal proceedings are the same. It was submitted that since in the DE proceedings allegations against the applicant were found to be proved, a punishment had been awarded to him, which was on the lenient side. It was submitted that the applicant could have managed his family matters better, and averted the FIR having been filed, and the respondents have rightly dealt with him departmentally, and awarded him the punishment, which meets the lapses committed by him. It was further submitted that no sincere efforts were made by the applicant to settle and close the matter with his wife, which ended in their separation, and that the Enquiry Officer had correctly gone about performing his task, and when the Prosecution Witnesses had supported the allegations levelled against the applicant/delinquent, the E.O. had reached the correct conclusion that the charges against the applicant stood proved. It was submitted that there was no violation of Rule-16 of DPPA Rules, 1980, in deciding the DE proceedings, and hence they had prayed for the OA to be dismissed.
12. The applicant filed his rejoinder on 16.10.2014, more or less reiterating his contentions as per his original OA, and reiterating his contention that the respondents have failed to explain the ambiguity in the reason for initiation of DE, and the basis of punishment awarded to him. It was reiterated that the conclusion of the Enquiry Officer nowhere shows that the charges levelled against him were found to be proved, or that he was himself responsible for registration of the criminal case against him. It was, therefore, denied that the registration of the said criminal case by his wife could have been averted by him just because of his being a member of a disciplined force, and it was submitted that that case has no relevance with the DE matter.
13. It was further submitted that on the one hand the respondents are trying to support the findings of the Enquiry Officer, and on the other hand they are presenting facts, which are contradictory and inconsistent to the findings of the Enquiry Officer. It was further submitted that the Disciplinary Authority had completely ignored the fact that during the enquiry, an independent witness namely PW-8, Smt. Ramesh, had completely demolished the allegations levelled by his wife that he did not visit him when their son was born. It was submitted that when law provides a right to every person to lodge a complaint, and it was the duty of the police officer to register an FIR if the complaint as lodged discloses the commission of a cognizable offence, the applicant could not have prevented his wife from lodging a complaint leading to the Registration of an FIR, and that the facts of the case do not prove the charge for which the DE was initiated against him, and that he had tried his level best to save his marriage, even living with his wife separately in a rented accommodation for some time, after which also she left him.
14. It was further submitted that Enquiry Officer has categorically noted in his findings that the allegations made against the applicant are vague in nature, and no proof of beating and torture was found either in the DE, or in the criminal case. It was further submitted that it was not proper for the Disciplinary Authority to change the content of charge from misconduct to the ground that the delinquent himself was involved in a criminal case. It was, therefore, prayed that the contents of the rejoinder may be treated as part and parcel of the OA, praying for the reliefs as sought for.
15. Heard. We have given our anxious consideration to the facts of the case. In ground-6 (d) of his OA, the applicant has cited from the Honble Apex Court judgment in respect of Inspector Prem Chand (supra), in which in Para-9&10, the Honble Apex Court had gone into the question of misconduct as well as misconduct in office, and had distinguished it from conduct involving moral turpitude or a mere error of judgment. It was held by the Honble Apex Court that the term misconduct implies a wrongful intention, a transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behaviour, willful in character, improper or wrong behaviour, with synonyms such as misdemeanor, misdeed, misbehaviour, delinquency, impropriety, mismanagement, offense, but excludes negligence or carelessness. After stating that 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, and it literally means wrong conduct or improper conduct.
16. In this context, we may cite in brief the ratio arrived at in the following cases also, by different Courts; from P. Ramanatha Aiyars The Law Lexicon, 3rd Edition, 2012, as follows:-
i) The term misconduct may involve moral turpitude, it must be improper or wrong behaviour, willful 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, as held by the Honble Apex Court in State of Punjab vs. Ram Singh, AIR 1992 SC 2188 : (1992) 4 SCC 54 [Constitution of India, Arts. 309, 311 and Punjab Police Manual, 1936, R.16, 2 (1)].
ii) The word misconduct covers any conduct, which anyway, renders a man unfit for his office, or is likely to embarrass the administration, as held by Honble Calcutta High Court in the case of Golam Mohiuddin vs. State of West Bengal, AIR 1964 Cal. 503 515 [West Bengal Govt. Servants Conduct Rules (1959), R.4]
iii) 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 [59 Mad. 789: 163 IC 493: 9RM 24: 1936 MWN 594: 43 LW 938: 1936 Mad 508: 70 MLJ 608]
iv) Misconduct literally means wrong or improper conduct, i.e., conduct in violation of a definite rule of action. It ordinarily means failure to do what is required of a person to be done. An omission to do what is required of a person to do may therefore constitute misconduct even though the person has not acted wilfully or maliciously, as held in the case of Shaikh Mohammad vs. G.G. in Council, AIR 1954 Nag. 337. [Indian Railways Act (9 of 1890), S.72]
v) Misconduct is something more than mere negligence. It is the intentional doing of something which the doer knows to be wrong or which he does recklessly, not caring what the result may be, as held in the case of Rasabati Bewa vs. Union of India, AIR 1961 Ori 113, 118. [Railways Act (9 of 1890), S.74-6(3)].
vi) Misconduct is something more than mere negligence, and it is the intentional doing of something which the doer knows to be wrong or which he does recklessly, not caring what the result may be, as held in the case of Dominion of India vs. Ado Shaw Aklu Shaw, AIR 1957 Pat. 219, 223 [Railways Act (9 of 1890), S.72].
17. Here, in the instant case, the applicant was charged through Annexure A-5 with his wife being at least taunted, if not tortured also, regarding bringing less dowry articles, and as per the enquiry conducted by the CAW Cell/OD, it was found that she had actually even been beaten mercilessly by her husband (the applicant before us), and her in-laws, in respect of which a case had been registered against the applicant. On the other hand, through his reply dated 11.09.2012 (Annexure A-6), the applicant has stated that when his marriage was solemnized on 19.04.2006, since the very first day of marriage it was felt by him that his wife had been forced to marry him, as he was a Govt. servant in Delhi Police, and that she never took interest in him, or in their matrimonial life. It has been further submitted by the applicant that she used to hardly stay 10-15 days at a time at her matrimonial home, and 3-4 months at her parental home. The applicant has further submitted that nearly two years after their marriage, his wife left their matrimonial home on 17.03.2008, and several efforts by him to bring her back, made till December 2008, did not succeed, which led to the filing of the Petition under section 9 of the Hindu Marriage Act at District Court Rewari on 20.12.2008. It was further submitted by the applicant that during the trial, his wife received Rs.19400/- as maintenance, but did not come back to their matrimonial home, and about a month after the Petition under section 9 of the Hindu Marriage Act having been filed by the applicant on 20.12.2008, a complaint of dowry harassment was filed by his wife with the DCP/Outer Distt. on 23.01.2009, which led him to apply for anticipatory bail. It was further submitted by the applicant himself that his wife wished to live with him in Delhi, and not with his parents in the village, and Court had directed him to arrange residential accommodation in Delhi, and, accordingly, on 28.07.2010, a rental accommodation was arranged by him at Rama Vihar, Delhi, and after fulfillment of that condition, bail was granted to him, and his wife again started living with him at the said accommodation at Rama Vihar, Delhi. However, only after 1 = months or so, again she deserted him, and filed a case seeking maintenance under section 125 of CrPC on 23.02.2009, and was getting Rs.8000/- per month as maintenance from the date of filing of that case. It was further submitted that she avoided cross-examination in DE proceedings wilfully, in spite of repeated requests.
17. The applicant has annexed the findings of the DE at Annexure A-7, from which it is seen that the applicant did not avail of an opportunity to cross-examine PW-1, PW-2, PW-3, PW-4, PW-5 and PW-6, only on the pretext of not having his Defence Assistant, and yet he himself cross examined only PW-8, who is a neighbour of his in-laws. PW-3 was his wife, PW-4 was his Mother-in-law, PW-5 was his Brother-in-law and PW-6 was his Sister-in-law (Brother-in-laws wife), and all these witnesses being his close relatives, could not have been so dominant or formidable enough for the applicant to have even refused to cross-examine them, only on the pretext of not having his Defence Assistant. This excuse of his, in also not cross-examining the departmental witnesses, PW-1 HC Rajesh Kumar and PW-2 ASI Mahinder Kumar, who had investigated the FIR concerned, and had arrested the applicant, in the absence of his Defence Assistant, is, however, understandable, as these official witnesses could have perhaps understood the legal intricacies during the cross-examination. But such understanding of legal intricacies could not have been understood by the applicants wife PW-3, his Mother-in-law PW-4, his Brother-in-law & Sister-in-law PW-5 & PW-6. Actually, PW-2 ASI Mahinder Kumar was also later on cross examined by the delinquent himself on 07.08.2012, even though his Defence Assistant was not available, but no fresh evidence of substantial nature could be brought on record, as had been recorded by the Enquiry Officer. He, however, felt encouraged enough to cross-examination PW-8, the neighbour of his in-laws when this pretext of his not having his Defence Assistant was not used by him. Therefore, the statement made by the applicant in his application dated 11.09.2012 (Annexure A-6) that his wife is avoiding cross examination in DE proceeding willfully on repeated request is obviously very-very far from truth.
18. In the discussion on evidence, the Enquiry Officer has pointed out that only when the delinquent wanted to take his wife to his village, for living with her in-laws, that was refused by his wife, as she wanted to stay with her husband in Delhi itself, which prompted the Court cases, and later arrangements had to be made by the applicant to stay separately, in order to try to sort out their mental problems. The Enquiry officer has found that no medical proof has been found in the DE proceeding regarding the allegations of beating and torture, yet he could come to the conclusion that the delinquent involved himself in a criminal case, which could have been averted by him, being a member of disciplined force. Thereafter, after going through the statements of PWs, the charge against the applicant, and his reply thereto, the Enquiry Officer had held the charge to have been proved.
19. Even in his representation against the findings arrived at in the DE dated 22.10.2012 (Annexure A-8), in his 12 page submissions, the applicant has only alleged cruelty on the part of his wife in having neglected him continuously in discharge of her duties of attention and company, and has even stated that her intention was bad right from the beginning, though he has admitted that she did not file any petition prior to the applicants case dated 18.12.2008 under section 9 of the Hindu Marriage Act having been filed, and only after about a month thereafter, his wife filed a case for dowry harassment and for maintenance.
20. Under the heading Duty to Serve Old Parents, the applicant has further stated that he wanted her to be a little loyal towards his old aged parents, while she never wanted to stay in the village, and has also pointed out that no demand of car in dowry had been made, as alleged in FIR No.291/09 filed against him. The applicant had even mentioned in his reply that his wife never cared for him even when he was admitted in Healing Touch Nursing Home, Sarvapriya Vihar, New Delhi, from 03.08.2008 to 10.08.2008, due to diagnosis of suffering from Tubercular Meningitis and Depression & Anxiety. But he has not mentioned as to how his wife had been informed about his hospitalization, though he has alleged that she did not bother to enquire about his health in spite of messages having been conveyed to her.
21. After having given our anxious consideration to the facts of the case, it is clear that both the applicant and his wife may have been wrong in their approach towards their marital discord, but it was only the fact that the applicant was trying to force his wife not to continue to live with him in Delhi in her matrimonial home, but to go and stay in the village, with his old aged parents, which precipitated the matters, and led his wife to desert him.
22. As has been recorded in quite detail in the impugned order of the Appellate Authority dated 18.09.2013 (Annexure A-1), and the order of the Disciplinary Authority dated07.11.2012 (Annexure A-2), the matter regarding criminal trial pending in the Court has not at all been given due weightage even by the departmental authorities, because of the nature of the dispute between the applicant and his wife. The Disciplinary Authority has, in fact, taken note of the efforts made by the applicant to settle the matrimonial dispute under the directions and intervention of the Courts, but had gone on to hold that the applicant could have averted the filing of the criminal case against him through his further conciliatory acts. The Disciplinary Authority has recorded that he is not inclined to inflict severest of punishment upon the delinquent, but keeping in view of the allegations against the applicant made by his wife, which the applicant had failed to meet, he had no reason to take a lenient view, and agree with the findings of the Enquiry Officer, and awarded a punishment of forfeiture of four years approved service permanently, entailing proportionate reduction in the applicants pay with immediate effect.
23. The Appellate Authority also gave him an opportunity of being heard in the Orderly Room, and found his pleas, both in writing and oral, to be not convincing, and confirmed the Disciplinary Authoritys order and rejected the appeal.
24. It is clear that the case of the applicant is at least covered under the synonyms of impropriety and mismanagement of his marital affairs, which has to be construed as wrong conduct or improper conduct in the context of the subject matter of the Hindu Marriages Act, and, therefore, even though misconduct has been held to be a relative term, but the applicant has obviously indulged in a transgression of some established and definite rule of action, which was willful in character, and was done with a wrongful intention, as he himself wanted his wife to stay away from her matrimonial home with him at Delhi, and to start living with his old aged parents in his parental village, which his wife resisted, as she wanted to live only with him in Delhi, which led to the misunderstanding between the two. The wifes then continued intention and continued willingness to live with the applicant in her matrimonial home in Delhi is further evident from the fact that when, according to Courts orders, an alternative accommodation was arranged by the applicant in Rama Vihar, even though the cases and counter cases had been filed by them against each other, she returned to him, and resumed her matrimonial duties.
26. Therefore, in the totality of circumstances, it appears that if not actual/regular beatings and torture, it was at least the unwarranted pressure applied by the applicant upon his wife, to start living separately from him, at his parental village in Delhi, to serve only his old aged parents, without enjoying marital bliss with her husband, which has led his wife to desert him.
27. In these circumstances of the case, whatever be the outcome of the criminal case pending against the applicant is of no consequence, but the conclusion arrived at by the departmental authorities in respect of applicants misconduct during the DE conducted against him, are just and proper, and, therefore, the OA is rejected, but there shall be no order as to costs.
(Raj Vir Sharma) (Sudhir Kumar) Member (J) Member (A) cc.