Central Administrative Tribunal - Delhi
Hc Karam Singh S/O Rur Singh vs Government Of Nct Of Delhi Through on 16 April, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI Original Application No.1394/2009 This the 16th day of April, 2010 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE SHRI L. K. JOSHI, VICE-CHAIRMAN (A) HC Karam Singh S/O Rur Singh, R/O D-161, N.P.L., Kingsway Camp, New Delhi. Applicant ( By Shri Sachin Chauhan, Advocate ) Versus 1. Government of NCT of Delhi through Commissioner of Police, Police Headquarters, IP Estate, New Delhi. 2. Deputy Commissioner of Police (Traffic) Police Headquarters, IP Estate, New Delhi. 3. Additional Commissioner of Police (Traffic), Police Headquarters, IP Estate, New Delhi. Respondents ( By Smt. Avnish Ahlawat, Advocate ) O R D E R Justice V. K. Bali, Chairman:
Karam Singh, Head Constable in Delhi Police, the applicant herein, sequel to a regular departmental enquiry held against him, has been visited with the penalty of forfeiture of two years approved service permanently entailing subsequent reduction in his pay from Rs.10040+2800 to Rs.9290+2800, his period of suspension from 9.4.2008 to 18.6.2008 having also been decided as not spent on duty, vide order dated 31.1.2009 passed by Deputy Commissioner of Police (Traffic). This order has since been confirmed by Addl. Commissioner of Police (Traffic), the appellate authority, vide order dated 13.4.2009. These are the orders which are under challenge in this Original Application filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985.
2. The enquiry officer, after recording evidence of SI Rajpal Singh (PW-1), HC (Min.) Pramod Kumar (PW-2), HC Bhoop Singh (PW-3), Const. Manish Kumar (PW-4) and ASI Ravinder Kumar (PW-5), framed the following charge against the applicant:
that while posted in West Zone/SB, you were assigned the job of verification of antecedents of one Shri Viresh Kapoor s/o Sh. Dwarka Nath Kapoor resident of 428, IIIrd Floor, Bhera Enclave, Paschim Vihar, New Delhi who had applied for passport under Tatkal Scheme with R.P.O./Delhi vide File No.T-016004 dated 9/09/05 and R.P.O./Delhi had issued him passport No.F-4683987 on 14/09/05. On 14/09/05, a PP Form in respect of Sh. Viresh Kapoor S/o Dwarka Nath Kapoor resident of house No.428, IIIrd Floor, Bhera Enclave, Paschim Vihar, New Delhi vide File No.T-016004 dated 9/09/05 was received in Special Branch for verification of personal particulars of the applicant after issuance of passport to the applicant under Tatkal Scheme. On receipt of PP Form in respect of Sh. Viresh Kapoor vide File No. T-016004 dated 9/09/05, the same was sent to Inspr. West Zone/SB for enquiry and the enquiry was conducted by you, the then area enquiry officer. During the course of enquiry it was found that Sh. Viresh Kapoor had also previously stayed at C-124, New Rajinder Nagar, New Delhi. As per standard practice photocopies of Pan Card, affidavit of D.O.B. & Place of Birth, UTI Bank statement (then current address) & MTNL bill (previous address) were collected. A record check was also made by you at police stations Rajinder Nagar and Paschim Vihar. A clear report was sent to RPO/Delhi vide No.624892 dated 6/10/05 on the basis of enquiry conducted by you H.C. Karam Singh 186/SB (now2548/T). On receipt of a reference from DCP/Crime & Rly. bearing No.2092/S.O./DCP/C&R(D-II) dated 19/3/08, the record of police station Paschim Vihar & police station Rajinder Nagar was got checked again on 9/04/08 and it was found that the applicant, Viresh Kapoor was involved in two criminal cases vide FIR No.397/85 u/s 498-A/406 IPC PS: Rajinder Nagar & FIR No.123/97 u/s 186/353/332/34 IPC PS: Rajinder Nagar. You H.C. Karam Singh 186/SB (now 2548/T) failed to mention the involvement of Sh. Viresh Kapoor in the above said cases in your report while submitting your report dated 28/09/05. The then Inspr. West Zone i.e. Inspr. Radhey Shyam had also forwarded the report submitted by you without verifying the facts and also failed to detect the same. The enquiry officer, after making mention of the evidence that came to be recorded in the enquiry, under caption Discussion observed, thus:
I have gone through the statements of PWs, final defence statements submitted by the delinquent HC Karam Singh No.186/SB (now 2548/T) and other relied upon documents present on DE file. All the 5 PWs were examined in which 4 PWs are the formal witnesses and deposed as per record. As per statement of PW-5, he is also basically formal witness in nature and has deposed on the basis of record as he was not posted in AAP branch in 2005 i.e. at the time of alleged incident. But he is an important witness because he has been a dealing hand of passport enquiry reports of AAP Branch. He has admitted the ingredients of column no.20 of PP form as toto but further stated that police enquiry officer submits his report after checking the record of concerned police station whether the passport applicant is involved in any case or otherwise. He has not stated anything about the time limit of involvement. This version of PW-5 clearly supports the charge against the delinquent official. Perusal of record of FIR No.397/85 u/s 498-A/406/34 IPC, PS Rajinder Nagar indicates that alleged accused was acquitted in this case on 04.09.91 and alleged accused has been discharged on 12.05.2000 in case FIR No.123/97 u/s 186/353/339/34, PS Rajinder Nagar i.e. cases relevant to this D.E. and Viresh Kapoor was not required in any case in any way more. But this aspect also hardly have any bearing on the charge wherein delinquent officer was required to mention the involvement only with or without going into their merits.
The delinquent officer has highlighted the letter of DCP/Crime which also appear to be irrelevant in regard to the passport enquiry made by HC Karam Singh 186/SB (now 2548/T) in 2005 because the involvement of Sh. Viresh Kapoor was required in 2007 only. This also has no bearing with the charge given.
He has further highlighted the letter dated 13.06.2008 issued by worthy Spl. C.P./Intelligence which also is silent/not clear regarding the initiation of departmental enquiry. The defence projected by the applicant on the basis of letter dated 19.3.2008 of DCP/Crime & Railways and another letter dated 13.6.2008 of Special Commissioner/Intelligence, was rejected and he was held guilty of the charge framed against him. The applicant made representation against the report of the enquiry officer but the disciplinary authority rejected the same by observing as follows:
The undersigned has carefully gone though the representation submitted by the defaulter HC as well as other material available on record. During personal hearing, he has advanced no fresh plea except that what he has already taken in his written reply. The defaulter HC has mainly taken the contention that there is not even an iota of substance to say that the charge held to be proved by the E.O. is based on some material suggesting ill motive or malafide intention on his part. He was new in Special Branch and it had been conveyed to him that criminal history beyond five years not requiring the presence of passport applicant in any court of law was irrelevant in the matter of passport enquiries. Even if he had mentioned these involvements, the passport of Sh. Viresh Kapoor would not have been denied. That PW-5 had not quoted any rule or departmental instructions that prohibits recommending the passport to an applicant despite his involvement in two criminal cases dating more than five years old. The defaulter further contended that PW-5 has also admitted that mere involvement in criminal cases beyond five years was not relevant. These pleas of the defaulter H.C. are an afterthought, because there is sufficient evidence/material available on D.E. file that he had submitted an all clear report in respect of Sh. Viresh Kapoor whereas he was found involved in two criminal cases vide FIR No.397/85 u/s 498-A/406/34 IPC P.S. Rajinder Nagar and FIR No.123/97 u/s 186/353/332/34 IPC PS Rajinder Nagar. He was ruffian Bundle A of PS Rajinder Nagar. The applicant while filling Col. No.11 of the Enquiry Report in Passport verification had clearly mentioned that he had checked record of PS Paschim Vihar and Rajinder Nagar on 28.9.05 and found nothing adverse against him. The defaulter had not submitted any documentary evidence either issued by PHQ or by Special Branch to prove that there was no need to quote past criminal history record beyond five years. Being an enquiry officer, it was his duty to furnish all adverse criminal details/record in respect of the applicant while submitting his report before the senior officers, but he failed to do so. The defaulter himself donned the mantle of the Issuing Authority whether such record was relevant for the issuance of passport or not and decided to withhold information that was otherwise available to him. The appeal of the applicant was dismissed by observing as follows:
The appellant in his appeal has mainly pleaded that there was not even an iota of substance to say that the charge held to be proved by the E.O. was based on some material suggesting ill motive or malafide intention on his part. He was new in Special Branch and what had been conveyed to him was that criminal history beyond five years was irrelevant in the matter of passport enquiries. Even if he had mentioned these involvements, the passport to Sh. Viresh Kapoor would not have been denied. These pleas of the appellant H.C. are an afterthought, because he had submitted an all clear report in respect of Sh. Viresh Kapoor whereas he was found involved in two criminal cases vide FIR No.397/85 u/s 498-A/406/34 IPC P.S. Rajinder Nagar and FIR No.123/97 u/s 186/353/332/34 IPC PS Rajinder Nagar. The appellant had not submitted any documentary evidence either issued by PHQ or by Special Branch to prove that there was no need to quote past criminal history record beyond five years.
The pleas put-forth by the appellant in his appeal and oral submission are not convincing. The appellant was supposed to report the cases registered against Sh. Viresh Kapoor at PS Rajinder Nagar in his verification report but he failed to do so. The appellant has stated that his senior officer had advised him not to mention the acquitted/discharge cases of the applicant which were prior to last five years but there is nothing on file to substantiate it
3. Before we may take into consideration the contentions raised by learned counsel representing the parties, it would be relevant to mention that whereas one FIR against Viresh Kapoor was u/s498-A/406 IPC, the other was u/s186/353/332/34 IPC. Both these FIRs pertained to PS Rajinder Nagar. The first FIR pertained to the year 1985 whereas the other pertained to 1997. PW-5 ASI Ravinder Kumar stated that Viresh Kapoor was acquitted in the case pertaining to the year 1985 on 4.9.1991 and he was discharged with regard to the other FIR pertaining to 1997 on 12.5.2000. this is also mentioned by the enquiry officer in his report, as would be clear from the portion of the enquiry report extracted above. The applicant was entrusted with verification of personal particulars of passport of Viresh Kapoor on 14.9.2005. The applicant, it is admitted position, was to do verification of antecedents/nationality of Viresh Kapoor and in terms of Section 6 of the Passports Act, 1967, for purposes of issuance of passport to him. Regional Passport Office, Delhi, addressed a letter to DCP/Special Branch (CID) for identity/verification of passport application. The letter written by the Regional Passport Office is placed on records at page 65 of the paper book. It reads as follows:
Sub: Identity/Verification of Passport application.
File No.T-016004 Date: 09-Sep-2005 Sir, Personal particulars form in respect of Sh. Viresh Kapoor S/o Dwarka Nath Kapoor is enclosed for verification of antecedents/nationality and in terms of Section-6 of the Passports Act 1967 & report within 3 weeks. The form filled by Viresh Kapoor was enclosed for verification, and verification was with regard to antecedents/nationality and in terms of Section 6 of the Passports Act, 1967. The accompanying form filled by Viresh Kapoor is on a printed proforma, column 20 whereof is relevant. The same reads as follows:
20 (a) Have you at any time during the period of five years immediately preceding the date of this application been convicted by a court in India for any criminal offence & sentenced to imprisonment for two years or more? If so, give name of the court, case number and offence. (Attach copy of judgment).
NO
(b) Are any criminal proceedings pending against you before a court in India? If so, give name of court, case number and offence.
NO
(c) Has any court issued a warrant or summons for appearance or warrant for arrest or an order prohibiting your departure from India? If so, give name of court, case number and offence.
NO
(d) Have you been even refused/denied passport? If yes, give details.
NO
(e) Has your passport been even impounded/revoked? If yes, give details.
NO
4. Shri Sachin Chauhan, learned counsel representing the applicant, contends that when the applicant was to verify personal particulars of Viresh Kapoor as required by the Regional Passport Office with regard to antecedents/nationality and in terms of Section 6 of the Act of 1967, non-mention of some criminal cases against Viresh Kapoor in which he was acquitted or discharged, would be of no meaning and consequence, and that if the applicant had not mentioned involvement of Viresh Kapoor and the result of the said cases, he cannot be said to have misconducted himself. The learned counsel refers to Section 6 of the Act of 1967, which reads as follows:
6. Refusal of passports, travel documents, etc. (1) Subject to the other provisions of this Act, the passport authority shall refuse to make an endorsement for visiting any foreign country under clause (b) or clause (c) of sub-section (2) of section 5 on any one or more of the following grounds, and on no other ground, namely:-
(a) that the applicant may, or is likely to, engage in such country in activities prejudicial to the sovereignty and integrity of India;
(b) that the presence of the applicant in such country may, or is likely to, be detrimental to the security of India;
(c) that the presence of the applicant in such country may, or is likely to, prejudice the friendly relations of India with that or any other country;
(d) that in the opinion of the Central Government the presence of the applicant in such country is not in the public interest.
(2) Subject to the other provisions of this Act, the passport authority shall refuse to issue a passport or travel document for visiting any foreign country under clause (c) of sub-section (2) of section 5 on any one or more of the following grounds, and on no other ground, namely:-
(a) that the applicant is not a citizen of India;
(b) that the applicant may, or is likely to, engage outside India in activities prejudicial to the sovereignty and integrity of India;
(c) that the departure of the applicant from India may, or is likely to, be detrimental to the security of India;
(d) that the presence of the applicant outside India may, or is likely to, prejudice the friendly relations of India with any foreign country;
(e) that the applicant has, at any time during the period of five years immediately preceding the date of his application, been convicted by a court in India for any offence involving moral turpitude and sentenced in respect thereof to imprisonment for not less than two years;
(f) that proceedings in respect of an offence alleged to have been committed by the applicant are pending before a criminal court in India;
(g) that a warrant or summons for the appearance, or a warrant for the arrest, of the applicant has been issued by a court under any law for the time being in force or that an order prohibiting the departure from India of the applicant has been made by any such court;
(h) that the applicant has been repatriated and has not reimbursed the expenditure incurred in connection with such repatriation;
(i) that in the opinion of the Central Government the issue of a passport or travel document to the applicant will not be in the public interest.
5. Mrs. Avnish Ahlawat, learned counsel representing the respondents, would join issues with learned counsel for the applicant, and would urge that the applicant was duty bound to mention all relevant information with regard to Viresh Kapoor, as it was a matter of issuing him passport, and that the Government could take no risk in such matters, and, therefore, all antecedents of Viresh Kapoor required necessary mention by the applicant, particularly when the same were available or could have been easily made available.
6. We have heard the learned counsel representing the parties and with their assistance examined the records of the case. We may mention at the very outset that there is no allegation of mala fides, or, in other words, it is not even the case of the respondents that the applicant, actuated on extraneous considerations, helped Viresh Kapoor in obtaining the passport. Findings recorded by the concerned authorities also do not go to that extent. We may also mention that it was not even the case of the respondents that Viresh Kapoor was bundle A ruffian of PS Rajinder Nagar. The disciplinary authority, it is not known on what basis observed that he was bundle A ruffian. If this was perhaps the case, the applicant ought to have mentioned this while verifying the antecedents of Viresh Kapoor. This was not subject matter of the charge nor any evidence appears to have been led in that behalf.
7. Insofar as, the core controversy in issue is concerned, it may be recalled that it is the case of the department itself that on 14.9.2005 a passport form dated 9.9.2005 in respect of Viresh Kapoor was received in Special Branch for verification of his personal particulars for issuance of passport under Tatkal scheme. It is this very form which was sent to Inspector, West Zone/SB for enquiry, which was conducted by the applicant. It was on 9.4.2008 that it was found that Viresh Kapoor was involved in two criminal cases. It may also be mentioned at this very stage that the applicant had submitted his report to Radhey Shyam, Inspector, West Zone/SB, who also, it is the case of the department, had submitted it without verifying the facts and failed to detect that Viresh Kapoor was involved in two criminal cases. We have already reproduced letter dated 9.9.2005 sent to DCP, Special Branch (CID) by Regional Passport Officer, Delhi. The letter aforesaid was accompanied by the form filled in by Viresh Kapoor, and the specific requirement of the Regional Passport Officer was for verification of antecedents/nationality and in terms of Section 6 of the Passports Act, 1967. We have already reproduced Section 6 of the Act of 1967. The particulars in the form had since already been filled by Viresh Kapoor. Insofar as, Section 6 of the said Act is concerned, refusal of passports, travel documents etc. is on specified grounds already reproduced in the earlier part of the order. Clauses (e), (f) and (g) of sub-section (2), insofar as the facts of the present case are concerned, are the only relevant provisions on which the passport could be refused to Viresh Kapoor. Insofar as, clause (e) is concerned, that is with regard to conviction of an applicant seeking passport at any time during the period of five years immediately preceding the date of his application, and the offence has also to be such which may involve moral turpitude, and even for that offence, imprisonment is relevant only if it is for not less than two years. Clause (f) deals with proceedings pending against a person seeking passport in respect of an offence alleged to have been committed by him and which may be pending before a criminal court in India. Clause (g) deals with issuance of warrant or summons for appearance, or warrant for arrest, of an applicant, by a court under any law for the time being in force, and an order prohibiting his departure from India having been made by any such court. Surely and admittedly, the said clauses were not applicable as Viresh Kapoor had not been convicted in any case nor any proceedings were pending against him in any criminal court, nor any warrant or summons, as mentioned above, had ever been issued against him. As mentioned above, accompanying with the letter dated 9.9.2005 was the already filled in form by Viresh Kapoor, column 20 whereof alone would be relevant. The same as filled in by Viresh Kapoor has already been reproduced above, which is in tune with the provisions of Section 6 of the Act of 1967, insofar as the same are relevant to the facts of present case, and which has already been adverted to. No information given by Viresh Kapoor in the relevant column was false. It is these particulars which the applicant was to verify. There was no answer to the contentions raised by the learned counsel representing the applicant during the course of arguments that the applicant had indeed verified the antecedents of Viresh Kapoor as required by the Regional Passport Officer in terms of Section 6 of the Act of 1967 and column 20 of the form accompanying letter dated 9.9.2005. We are conscious of the fact that involvement of a person seeking passport in a criminal case, with whatever result, may be relevant, but then in that case, it has to be the case of the respondents that under any rule or instruction, or for that matter, even orders passed by superior authorities, a police officer is required to make mention of the same. It is not even the case of the respondents that there were indeed some instructions which required the applicant, while verifying the antecedents of the person seeking passport, to mention his involvement in a criminal case, at whatever distance of time it may be, and with whatever result. If making mention of such matters is not the requirement of the statute, nor of the relevant columns of the passport form which had to be verified, in our considered view, the applicant could not be held guilty of misconduct. In fact, it appears to us that mention of involvement of a person in a criminal case at whatever distance of time and with whatever result, is not required at all, and if passport cannot be refused even if such matters are mentioned, the same can well be said as if not required to be mentioned. We do not want to go into the seriousness of the offences under which the FIRs came to be registered against Viresh Kapoor, even though we may hasten to add that the same would not appear to be very serious. The first FIR was under Section 498-A/406 IPC, which appears to have been related to some dispute Viresh Kapoor may have had with his wife. In Section 498-A the maximum punishment is three years. Kapoor was acquitted, insofar as this case is concerned. With regard to the other FIR, he was discharged, which would mean that the concerned court had not found enough evidence to even frame a charge against him. However, as mentioned above, we do not want to go into this issue. We may only illustrate that where a person might have been proceeded under Section 107/151 Cr.PC in cross security proceedings twenty years before he may have applied for issuance of a passport, would that be relevant in considering his case for issuance of passport and denying the same to him. If such matters are wholly irrelevant and cannot be a factor relevant for refusing to issue passport, non-mention of such matters, it appears, would not be serious enough to entail disciplinary proceedings and then to hold an employee guilty of misconduct. If despite all this, the respondents are of the view that mention of criminal involvement, whatever be the nature of offence and whatever may be consequences of registration of the FIR or the trial that may commence, need to be mentioned being relevant, some instructions at least in that regard had to be issued for the police officers. Once, they are asked to verify the antecedents of a person seeking passport, on specific issues, it is only incorrect information on such issues which may be serious and would need disciplinary action. As mentioned above, the respondents have not relied upon any instructions either mentioned in the charge or disclosed during the course of enquiry. The applicant, in our view, in the facts and circumstances as fully detailed above, could not be held guilty of misconduct and thus punished. We may reiterate that there is no finding that the applicant actuated by extraneous considerations, willfully omitted to mention involvement of Viresh Kapoor in two criminal cases, as mentioned above. The Honble Supreme Court in State of Punjab & Others v Ram Singh, Ex. Constable, (1992) 4 SCC 54, held 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. Negligence or error of judgment or innocent mistake cannot constitute misconduct. In the present case, the applicant could well be under the belief that he was to give information as asked for from him, and surely and admittedly, in the information asked for from him, there was no concealment whatsoever.
8. For the reasons stated above, this Application is allowed. Impugned orders dated 31.1.2009 and 13.4.2009 passed by the disciplinary and appellate authorities respectively are quashed and set aside. The applicant shall be entitled to all consequential benefits. There shall, however, be no order as to costs.
( L. K. Joshi ) ( V. K. Bali ) Vice-Chairman (A) Chairman /as/