Central Administrative Tribunal - Delhi
Inspector Dharmendra Kumar vs Govt. Of Nct Of Delhi Through on 15 December, 2008
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.788/2008 This the 15th day of December 2008 Honble Shri L.K. Joshi, Vice Chairman (A) Honble Shri Shanker Raju, Member (J) Inspector Dharmendra Kumar Age about 52 S/o late Shri Kundan Lal Suman, R/o A-108, Pul Pahladpur PO Badarpur New Delhi-44, Group B. ..Applicant (By Advocate: Shri S.K. Gupta) Versus 1. Govt. of NCT of Delhi through Chief Secretary Delhi Secretariat Player Building, IP Estate New Delhi 2. The Commissioner of Police Police Headquarters IP Estate, New Delhi 3. The Joint Commissioner of Police (Armed Police) Police Headquarters IP Estate, New Delhi 4. Enquiry Officer / Deputy Commissioner of Police Departmental Enquiry Cell Delhi Police Bhawan Asaf Ali Road, New Delhi ..Respondents (By Advocate: Shri Ajesh Luthra) O R D E R
Shri Shanker Raju:
Applicant, an Inspector in Delhi Police, challenges the findings recorded by the inquiry officer holding him guilty. Also assailed is a common order passed by the disciplinary authority on 13.9.2006 imposing upon him a major penalty of forfeiture of five years approved service permanently entailing proportionate reduction in pay. The aforesaid order when challenged in appeal, the appellate authority vide order dated 27.4.2007 upheld the punishment.
2. On the allegations that while posted as Additional SHO, Anand Vihar on 6.4.2004, FIR No.137/04 under Section 302/34 IPC, Delhi under murder case was registered where during the investigation, one Mahavir, a conspirator in the murder case, was brought to the Police Station by Inspector, Girish Kumar and was interrogated by the applicant and released on the same date. Accordingly, it is stated that the applicant was present on 15/16.4.2004 at PP/ISBT, Anand Vihar and was not formally arrested.
3. In the above charge-sheet, Inspector Girish Kumar was also held to have lack of supervision by not bringing this fact to the notice of senior officers.
4. When a punishment of forfeiture of one years approved service was imposed upon Inspector Girish Kumar, he approached this Tribunal by filing OA-1105/2007, which was allowed on 7.1.2008. The observations made by the Tribunal, which are relevant for this case, are reproduced as under:-
8. It is an accepted fact that the Investigating Officer, Dharmander Kumar, is also of the same rank as the Applicant. The Respondents have not produced any instructions regarding the responsibility of SHO in supervising the progress of the case, which were violated by the Applicant. Merely stating that he should have kept control and briefed his subordinate police personnel about handling of such cases would not be sufficient reason to indict the Applicant. There is considerable ambivalence in the mind of the disciplinary authority who while finally inflicting the punishment holds that the Applicants involvement in the escape of Mahavir is not proved, yet holds at another place in his order (quoted in paragraph 7 above) that his connivance in the escape cannot be ruled out. While the disciplinary authority is confused, the appellate authority has added another dimension to the charge that the Applicant not only failed to supervise his subordinate but tried to shield them also. While the charge against the Applicant related to lack of supervision and not keeping his seniors apprised of the developments in the case, the thrust of the enquiry has been to prove the Applicants and the co-accuseds culpability in the escape of Mahavir Singh. There is no evidence about lack of supervision by the Applicant. There is no evidence on record that the Applicant brought Mahavir, allegedly a conspirator in the murder of his brother, from Bulandshahar to PS Anand Vihar and kept him under detention till 15/16.04.2004. PW-1, Head Constable Safal Ram, has clearly stated that there is no mention in Daily Diary number 55-B dated 7.04.2004 of PS Anand Vihar that the Applicant had brought Mahavir from Bulandshahar for interrogation. PW-4, Inspector Jagdish Prasad, who claimed to have seen Mahavir at Police Post at Anand Vihar, ISBT has not been supported by any witness in this contention including DW-3, Constable Naresh Kumar and DW-7, Head Constable Devender Singh, who were posted at PP Anand Vihar, ISBT. PW-4 has mentioned that he called Mobile 22 SI Ram Avtar as he was the night checking officer of PS Anand Vihar, who told that this person was Mahavir and I saw him in PP/ISBT/A.Vihar. DW-5, Ram Avtar, has, however, stated that he was on patrolling duty on M/cycle Mobile 22 in the area of PS Anand Vihar. During the course of patrolling I visited PP, ISBT/Anand Vihar, where I did not notice any suspect sitting in the premises of PP, ISBT/Anand Vihar. DW-4, SI Kiran Pal Rana has stated that he brought Mahabir from Bulandshahar and handed him over to Dharmender Kumar, Additional SHO, Anand Vihar on 9.04.2004. DW-3, Constable Naresh Kumar, has stated that he visited Bulandshahar with the Applicant on 7.04.2004, came back the same day and [N]o person under the name of Mahabir was brought to Delhi from Bulandshahar. ACP, Vivek Vihar, in his explanation dated 24.05.2004 (quoted above) has stated that according to Inspector Dharmender Kumar, Mahavir escaped from the latters custody at Bulandshahar.
9. In the light of the above evidence it would seem unconvincing for the enquiry officer to hold that Mahavir was brought by the Applicant to Delhi on 7.04.2004 and he was interrogated and kept in illegal detention up to 15.04.2004. We have gone into the details of the evidence given by various witnesses not to re-appraise the evidence, but to look carefully for any clue about lack of supervision by the Applicant in this case. Obviously, even the disciplinary and appellate authorities have not placed credence on the enquiry officers conclusion as mentioned above. In these circumstances the Applicant cannot be held to be guilty of lack of supervision, when the investigating officer, enjoying the same rank as the Applicant has been performing an independent course of enquiry. The Respondents have failed to show the instructions issued in this regard by the competent authority about supervision of the work of Investigating Officer by the SHO. In the absence of these and in the facts and circumstances of this case, we find no evidence to prove the charge of lack of supervision by the Applicant.
10. In view of the above, the OA succeeds and the impugned orders, Annex A-1 & Annex A-2 are quashed and set aside. The Applicant shall be entitled to all consequential benefits. The above directions should be complied with within three months of the receipt of a certified copy of this judgment. There will be no orders as to costs.
5. If one has regard to the above, a judicial finding has been recorded discrediting the story of prosecution that accused Mahavir was brought by Inspector Girish Kumar on 7.4.2004 and was kept him in illegal detention upto 15.4.2004.
6. Apart from taking various legal pleas, learned counsel contended that the evidence of Inspector Jagdish Prashad that if Mahavir was not observed to be brought by Inspector Girish Kumar when not supported by D-5 & D-7, then keeping him in illegal detention and subsequently releasing without formal arrest, cannot be sustained and such a finding recorded at the departmental level is not only perverse but also based on no evidence and is in conflict with the judicial dicta, which overrides any administrative finding.
7. On the other hand, learned counsel for respondents, Shri Ajesh Luthra vehemently opposed the contentions and stated that the decision in Girish Kumars case (supra) is distinguishable, as in the said case, the allegation of lack of supervision was made but against the applicant herein, the charge is of negligence in investigation of the case.
8. We have carefully considered the rival contentions of the parties and perused the material on record.
9. In our considered view, we cannot split the allegations on a joint inquiry where both Inspector Girish Kumar and the applicant were proceeded. Inspector Girish Kumar was charged for bringing Mahavir and interrogated by the applicant. On 15/16.4.2004 presence of Mahavir at the Police Station could not be logical and rationale even applying the test of a common reasonable prudent man, as in Girish Kumars case (supra), the aforesaid order passed by the appellate and disciplinary authorities as to the factum of bringing Mahavir to Delhi on 7.4.2004 and keeping him in illegal detention upto 15.4.2004 when refuted and not relied upon, the allegations against the applicant are in the context and continuity of those disproved allegations wherein it is alleged that the applicant had not formally arrested Mahavir, who ran away from the Police Station. It is very irrational that once Mahavir was not brought to the Police Station, there is no question of his being let-off without being arrested. It is not a case where the allegations forming chain on circumstances are to be relied on part and the part, which is observed not to have any valid legal existence by the Tribunal in Girish Kumars case (supra), should be exculpated. In the chain of events, if the initial bringing of Mahavir has not been proved, it cannot be logically inferred even applying the test of preponderance of probability that he was not present and illegally detained in the Police Station. As such, the question of his letting-off and formal arrest could not arise.
10. An administrative finding, as a trite law, cannot override or infiltrate into an arena occupied by a judicial dicta, as ruled by the Apex Court in Anil Rattan Sarkar v. State of West Bengal, (2001) 5 SCC 327.
11. In the light of above, the finding recorded both by the inquiry officer, disciplinary and appellate authorities cannot be sustained. There is absolutely no material and evidence to connect the applicant with the alleged misconduct being a case of no misconduct and on a perverse finding and on merely suspicion and surmises one cannot be punished, as ruled by the Apex Court in Kuldeep Singh v. Commissioner of Police & others, JT 1998 (8) SC 603.
12. Leaving other grounds open, for the foregoing reasons, OA is allowed. Impugned orders are set aside. Respondents are directed to expunge the punishment of the applicant and in such an event his pay and increments shall be restored to him, within a period of two months from the date of receipt of a copy of this order. No costs.
( Shanker Raju ) ( L.K. Joshi ) Member (J) Vice Chairman (A) /sunil/