Central Administrative Tribunal - Delhi
Radhey Shyam vs The Commissioner Of Police on 10 April, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No.1791 of 2011 Orders reserved on : 19.3.2012 Orders Pronounced on : 10.04.2012 Honble Dr. Veena Chhotray, Member (A) Honble Dr. Dharam Paul Sharma, Member (J) Radhey Shyam, ASI, Delhi Police, Aged 48 years, s/o Late Sh. Khazan Sing, R/o J-1/191, IInd Flr, R.B.I. Enclave, Paschim Vihar, New Delhi 63. .... Applicant (By Advocate Shri Mohd. Farookh for Shri Sanjay Ghose) VERSUS 1. The Commissioner of Police, Police Head Quarters, MSO Building, I.P. Estate, New Delhi-110002. 2. The Addl. Commissioner of Police, Police Control Room, Police HQ, Through the Commissioner of Police, Police Head Quarters, MSO Building, I.P. Estate, New Delhi-110002. 3. The Dy. Commissioner of Police, Police Control Room, Police HQ, MSO Building, I.P. Estate, New Delhi-110002. .. Respondents ( By Advocate Shri Nitish Kumar Singh for Mrs.Avnish Ahlawat ) O R D E R Dr. Dharam Paul Sharma, Member (J) :
By way of this Application filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant an ASI with Delhi Police is challenging the order dated 16.8.2010 passed by the disciplinary authority awarding him penalty of withholding of one (next) increment for a period of two years temporarily and the order of the appellate authority dated 15.3.2011 rejecting the appeal of the applicant against the order of the disciplinary authority referred to above.
2. The brief facts of the case are that on 31.5.2007 an FIR bearing No.FIR No.425/07 under Section 307 read with Section 34 IPC at Rajouri Garden Police Station on the basis of the complaint filed by one Shri Ashok Kumar who complained that he had been threatened by one Ajay and one Peer Mohd. and these two had attacked him causing severe injuries on his head on 30.5.2007.The applicant was appointed as Investigating Officer in this case. The complainant address as mentioned in the FIR was WZ 34-B, Vikas Puri, New Delhi. The applicant took the complainant to Deen Dayal Upadhyay Hospital, Harinagar, for medical help where the complainant gave the same address as mentioned in his complaint earlier. Thus, medico legal report prepared by the concerned doctor also contained the same address as above. Subsequently, the complainant left the hospital without intimation. In the course of investigation, the applicant arrested two co-accused who were chargesheeted before the Court of Additional Session Judge, Rohini. The Additional Session Judge summoned the applicant for appearance on 9.1.2008, 4.3.2008, 22.4.2008, 17.5.2008, 13.08.2008 and 18.9.2008. The applicant did not appear in the Court. His case is that he had not received these summons, except the one dated 4.3.2008. The Court had also issued bailable warrant for non-appearance. In the meantime, the applicant father who had been ailing for quite some time passed away on 24.12.2008. Since the applicant had provided the incorrect address, the summons issued by the Court were not received by the complainant who did not appear in the court and resultantly, the court acquitted the accused. While passing the order of acquittal of the accused, the court made some adverse comments about the manner in which the investigation had been conducted.
3. The departmental inquiry against the applicant was ordered vide Order No.14363-90/HAP/P-II/PCR daed 14.7.2009. Initially it was entrusted to Shri Satbir Singh, the than ACP/PCR. The summary of allegations, list of witnesses and list of documents were prepared and served upon the applicant. Seven PWs cited in the departmental inquiry were examined and the charge was prepared and got approved and served upon the applicant. The applicant denied the charges. The charges reads as follows:-
It is alleged against ASI Radhey Shyam No.2538/W, 5647/PCR (3990/D) (PIS No.28780058) that while posted at PS Rajori Garden, he was the I.O. of case FIR 425/07 u/s 307/34 IPC PS Rajori Garden registered on the complaint of MR. Ashok Kumar S/o Sh Desh raj R/o WZ-34B, Vikash Puri Delhi. Two accused were arrested in the said case by the IO, ASI Radhey Shyam mentioned above, who inflicted injuries on the person of complaint Ashok Kumar with a knife like sharp weapon at Rain Basera Ring Road, Raja Garden, Delhi. Both the accused were charged sheeted in the Court of Sh. Arun Kumar Arya, Addl. Session Judge, Rohini Courts, Delhi. During trial in the Court, Summons were issued on four occasions to attend the court on dated 9.1.2008, 4.3.2008, 22.4.2008 & 17.05.2008, out of these four summons two summons for dated 9.1.2008 and 17.5.2008 were served upon the ASI through Duty Officer District Line by Const. (Now HC) Ram Ray No.1313/W. On other occasions, it was reported on the summons that the IO is on leave. But, despite having noted the summons on two occasions, the ASI never attended the court even after issuance of bailable warrants for dated 8.7.2008, 23.07.2008, 13.08.2008 (served) and 18.9.2008 from the court. On the other hand, the complainant was also not appeared in the Honble court. It has been found that the address mentioned in the charge sheet by the IO is not traceable in Vikas Puri and it has been reported by the server that the address given on the summons is not correct. It is serious lapse on the part of the IO. Ultimately the Honble Court has acquitted the accused from the charge as there was no incriminating evidence produced by the IO against the accused person and IO failed to establish the charges against the accused persons.
I, Satbir Singh, ACP/E.O. frame the charge upon ASI Radhey Shyam, No.2538/W, 5647/PCR (now 3990/D) that despite having noted the summons on two occasions, you never attended the court even after issuance of bailable warrants for dated 8.7.2008, 23.07.2008, 13.08.2008 (served) and 18.9.2008 from the court.
address of the complainant mentioned in the charge sheet by you is not correct and traceable in Vikas Puri. Even the server reported that the address given on the summons is not correct. It is serious lapse on your part, resulting acquittal of the accused from the charge by the Honble Court.
The above act on the part of ASI Radhey Shyam No.5647/PCR amounts to gross misconduct, negligence, carelessness and dereliction in the discharge of his official duty which renders him liable to be dealt with departmentally under the provision of Delhi Police (Punishment & Appeal) Rules, 1980.
4. Since the applicant did not plead guilty to the charge, an inquiry was held. The applicant duly participated in the inquiry and submitted his statement of defence. Thereafter after considering the evidences of the witnesses as well the evidence brought on record, the Inquiry Officer returned the finding vide report dated 2.3.2010 that the charge of not appearing in the court by the defaulter ASI (applicant) despite having information at least on two occasions, i.e., for 9.1.2008 and 13.8.2008 stood proved. The charge of not recording the correct address of the complainant was also partially proved. A copy of the inquiry officer report was furnished to the applicant by the disciplinary authority which tentatively agreed with the findings of the Inquiry Officer calling upon the applicant to make a representation against the same, if he so desire within 15 days. The applicant submitted his reply thereto dated 17.3.2010. Thereafter the disciplinary authority passed the order of penalty which is under challenge in these proceedings. The appeal filed by the applicant against this order was also rejected by the appellate authority which too is being challenged in these proceedings. The grounds taken in the Application while challenging the impugned orders, inter alia, include that the applicant had only received one of the summons and there is no evidence to show that the applicant had received rest of the summons. The summons issued to the complainant could not be served on account of incorrect address given by the complainant himself for which the applicant could not be held responsible. The applicant had, in fact, performed his duty with due diligence and sincerity and the responsibility for acquittal of the accused persons could not be fixed upon him. The summons were mostly received by one Sh. Ram Roy, Head Constable, Maya Puri Police Station, who either tagged the summons in the suspension file of the applicant or sent the same to the D.O. of the West District, Delhi Police and the entire case was mishandled by the different authorities. As per MLC issued by the Doctor of Deen Dayal Upadhyay Hospital, New Delhi which reveals on the face of the Hospital prescription that the patient absconded.. and, therefore, there is no violation on the part of the applicant about tracing the whereabouts of the victim Shri Ashok Kumar. As a matter of fact, the complainant himself gave a wrong address not only to the applicant but also to the hospital authorities and the applicant was merely performing his duties in a diligent manner and could not have been expected to verify the address while also ensuring that the complainant received critical medical aid.
5. Per contra, the respondents while opposing the applicants claim have contended that the concerned authorities, namely, disciplinary authority as well as appellate authority have carefully gone through the finding of the Inquiry Officer and other material brought on the file before awarding the punishment to the applicant for the lapses committed by him. The applicant was even called in OR and heard in person by the disciplinary authority on 6.8.2010. The impugned orders have been passed in accordance with the relevant rules after holding a regular inquiry in which the applicant has duly participated and given all the opportunities to defend himself and are thus legally in order. The disciplinary authority as well as appellate authority have given detailed reasons in support of their orders which indicates due consideration of the submissions of PWs Exhibits, defence statement/representation of the applicant and findings of the Inquiry Officer. There has been serious lapse on the part of the applicant who should have conducted necessary enquiry before proceeding and verified the address. Failure to do so, resulted in non-serving of summons upon the complainant which ultimately led to the discharge of the accused. There has thus been miscarriage of justice. It is the duty of the applicant to inform the relative of the complainant if the complainant was injured by sending some responsible police officer at the address given by the victim. Had the applicant carried out the duty properly, the accused would not have been let off. The applicant despite having noted the summons on two occasions never attended the court even after the issuance of bailable warrants dated 8.7.2008, 27.3.2008 and 13.8.2008 served upon the applicant and 10.09.2008 from the court. The Honble Supreme Court in the case of Shailendra Kumar vs. State of Bihar and others, (2002) 1 SCC 655, has held that the presence of investigation of officer at the time of trial is must. It is his duty to keep the witnesses present. The applicant herein had failed to do so. The entire case was properly analyzed by the different authorities and the applicant was rightly held guilty of charge and punishment awarded to him is justified and commensurate with the misconduct committed by him.
6. The applicant filed his rejoinder in which the averments made in the OA were reiterated. Reference was made to the provisions of Cr.P.C. as well as certain cases to show that the proper service and summons were not made to the applicant. Furthermore, the fact that the address given by the complainant is not traceable does not constitute any serious lapse on the part of the applicant.
7. At the hearing, learned counsel for the applicant strongly contended that service of summons were not as per the provisions of Cr.P.C. He has referred to in this regard even the evidence of Ram Roy at page 52 of the paperbook who in cross-examination admitted that even summons had been kept in file. The same is not deemed to have been served as per the provisions contained in Cr.P.C. It has thus been contended that insofar as receipt of summons are concerned, it is the case of no evidence. As regards the recording of incorrect address of the complainant, it has been submitted that the same has been recorded as per the information submitted by the complainant himself and this is not only in the case of recording of FIR but also in the hospital records the same address was recorded. Even the disciplinary authority has observed that the address of the complainant is generally recorded as is stated by the complainant and police is not meant to harass him when the victim is injured. Nonetheless, the appellate authority held the applicant guilty of the charge for the reason that keeping in view the gravity of the case where the complainant was stabbed, it was his duty to call the relative of the complainant by sending some responsible officer at the address given by the complainant.
8. The learned counsel for the respondents opened his arguments by referring to principles of judicial review in disciplinary matters, according to which, it is not open to this Tribunal to reappraise the evidence as is being sought by the applicants counsel. Furthermore, no procedural infraction has been pointed out by the applicant. The judicial review in disciplinary cases is directed against the decision making process rather than decision itself. Nor do the courts sit in appeal over the decision of the disciplinary authorities. If all the procedural requirement are duly complied with and there is some evidence in support of the charge, it is open to the disciplinary authority to pass appropriate orders accordingly and the Court would neither go into the sufficiency of evidence nor would substitute its own opinion in place of that of the disciplinary authority. The learned counsel for the respondents then referred to the findings of the Inquiry Officer and submitted that out of the various summons and bailable warrants issued to the applicant, the Inquiry Officer has found him guilty only in respect of two, one of which was personally received by the applicant himself as admitted by him and with regard to another, he was duly informed by PW4 and yet the applicant had not appeared in the Court. As a matter of fact, the applicant had not appeared at all in the case. Being the Investigating Officer, he was supposed to keep track of all the developments of the case and followed it up properly. Failure to do so has led discharge of the accused, resulting in miscarriage of justice. It was further contended that even the applicant has not given his own address correctly as has been noted by the disciplinary authority which is being viewed as a serious lapse on his part. The learned counsel for the respondents made us to run through the orders of the disciplinary authority as well as appellate authority and strongly contended that all the pleas raised by the applicant have been duly given due consideration by the authorities concerned and they have given detailed reasons in support of their orders. That being so, the same are not open to any objection. The learned counsel concluded his submissions that there are three parameters which may call for judicial intervention in exercise of the power of judicial review in disciplinary matters, namely, (1) competency of the authority; (2) compliance with statutory procedural requirements; and (3) there are being some evidence in support of the charge. None of these three parameters are present in the instant case, justifying judicial intervention and the Application ought to be dismissed with exemplary cost.
9. We have given our careful consideration to the respective submissions made by both the parties. We have also carefully perused the record of the case.
10. What the applicants counsel strives for is that we should re-hear the matter and reappraise the evidence which is not permissible in law. There are two charges on which the applicant was proceeded against in the inquiry, namely (1) non-appearance in the Court; and (2) not recording correct address of the complainant which had led to the discharge of the accused. As a matter of fact, non-appearance in the court on the one hand and not recording the correct address of the complainant on the other hand, both are factually correct. The only thing that can be seen in this case is as to whether the applicant has any justifiable reasons for these lapses. The applicant himself has stated in his Application that there were four summons and four bailable warrants stated to have been issued to him but out of which he admitted of having received one only. The Inquiry Officer has found him to be in the know of another summon as well, the information of which was given to him by PW4. This was confirmed by PW4 even in his cross-examination read with his report dated 2.9.2008 Exhibit PW4/D when he responded to question no.6 that he has not noted down mobile number of the complainant in his report. Insofar as the other charge with regard to recording of incorrect address of the complainant is concerned, it is no doubt true that the complainant gave a false address. That by itself is not sufficient, as an Investigating Officer, he has to exercise due diligence and care and take necessary action in order to ensure successful prosecution of the case. Both the disciplinary authority as well as the appellate authority have observed that since the victim was stabbed and was in critical condition, it was expected of the applicant to send information through some police officer to his family at the given address. The Inquiry Officer has too held this charge partially proved for which inference can be drawn that had the applicant acted with due care and caution with diligence this lapse could have been avoided. We are conscious of the limitations of the judicial review in disciplinary cases. Keeping in view the well established principles of law in this regard, we do not find that the applicant has been able to make out any case for our intervention in the exercise of our power of judicial review.
11. Having given our careful consideration to the facts and circumstances of the case, we do not find any warrant to interfere in the matter. The Application is devoid of substance and is accordingly dismissed with no order as to costs.
(Dr. Dharam Paul Sharma) (Dr. Veena Chhotray)
Member (J) Member (A)
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