Central Administrative Tribunal - Delhi
Surendra Singh vs Govt. Of Nct Of Delhi on 5 July, 2011
Central Administrative Tribunal
Principal Bench
OA-4075/10
New Delhi, this the 5th day of July, 2011
HONBLE SHRI GEORGE PARACKEN, MEMBER (J)
HONBLE DR. A.K. MISHRA, MEMBER (A)
Surendra Singh
Sub-Inspector in Delhi Police,
Aged about 35 years,
PIS No.16970007
S/o Sh. Surjeet Singh
R/o Q.No.32, Police Colony
Kalyan Puri, Delhi-91. . Applicant.
(By Advocate: Shri Anil Singal)
Versus
1. Govt. of NCT of Delhi
Through Commissioner of Police,
PHQ, IP Estate, New Delhi.
2. Joint Commissioner of Police,
Southern, PHQ, IP Estate,
New Delhi.
3. Addl. DCP (South Distt)
Through Commissioner of Police,
PHQ, IP Estate, New Delhi. .. Respondents.
(By Advocate: Ms.Sumedha Sharma)
ORDER
Shri G.George Paracken:
The applicant is aggrieved by the Annexure A-1 show cause notice dated 3.7.2009, Annexure A-2 order of Censure dated 30.9.2009 and the Annexure A-3 appellate order dated 22.12.2009 rejecting his appeal.
2. At the relevant time, applicant was working as In charge of Legal Cell South District of the Delhi Police. During the said period, an FIR No. 572/07 was registered u/s 376/506/34 IPC r/w Section 5 of Immoral Traffic (Prevention) Act, on 13.09.2007. The closure report in the case was rejected by the concerned MM and DCP/South was directed to get the matter further investigated by appointing an SPO as required under ITP Act (not below the rank of Inspector) and to file a detailed status report for further investigation. Therefore, the investigation in the said FIR was transferred to DIU/SD under the close supervision of ACP/DIU/SD vide Annexure A-5 order dated 02.05.2008. Thereafter, the Addl. Deputy Commissioner of Police South District, vide Annexure A-6 letter No.12335-38/SO/DCP/SD dated 16.7.2008 decided that the investigation of the above case would be carried out by SHO/Hauz Khas being an S.P.O. nominated under the ITP Act. The case was listed before the Ld. MM on 18.07.2008 to file the Status Report but as neither SHO/Hauz Khas nor Insp. Piyush Minz appeared before the Court, the Honble Court directed the DCP/DIU to appear before the Court and place a report in writing for non-compliance of the order. Pursuant to the aforesaid order of the learned M.M, the applicant prepared the following Annexure A-8 Note on 04.8.2008:
.The investigation of the case was transferred to DIU/S.D. and the case is being investigated by Inspr. Piyush Minz/DIU at F/B. On 16.7.2008 SHO Hauz Khas has been appointed as an Spl. Police Officer in the case by the Addl.DCP/South. The case was fixed for 18.7.2008 in the court of Ms.Ravinder Bedi MM Patiala House court, but neither reply is filed in the court nor I.O. appeared to apprise the court of the status of ongoing investigation. Therefore, the Honble Court has directed DCP/DIU to appear and place a report in writing for non compliance of the court order.
In this connection, the matter has been discussed with Inspr. Piyus Minz/DIU. He stated that he reached the court late on 18.7.2008.
Submitted for kind perusal and further orders please Below he said note, the Inspector Legal Cell/S.D made the following noting:
One Insp. From DIU/S.D. may be appointed as S.P.O. to investigate the case in place of S.H.O. /H.K. as the concerned case is of H. Khas P.S. if approved, explanation of Insp. Piyus minz may also be called for his lapse to reach the court late on 18.07.08. pl. The Addl DCP-I/S.D approved the above proposal and made the following noting:
Appd. Per a list of IOs who can be made S.P.O. and thereby be fit to represent under ITP act as SPO for DIU unit of south Distt. Thereafter, the following notings made by the applicant routed through the Inspector, Legal Cell was approved by the Addl. Dy. Commissioner of Police:
There are 3 Inspectors in DIU Cell/S.O. Insp. Ishwar Singh, Inspr. Krishan Murari and Inspr. Piyush Minz. As nspr. Piyush Minz is already looking after the case. Therefore if approved orders may kindly be approved in his name as an SPO.
3. Thereafter, vide Annexure A-9 order dated 04.08.2008, the Addl. Dy. Commissioner of Police directed that the investigation of the case would be carried out by Insp. Piyush Minz of DIU/SD being SPO nominated under ITP Act.
4. Later, vide Annexure A-10 notice dated 21.11.2008, the Addl. Dy. Commissioner of Police, South District, New Delhi sought the explanation from the applicant which is as under:-
On 4.8.2008 the undersigned directed to SI Surendra Singh Bisht No.D-804 (the then I/C Legal Cell/SD) to put up a list of IOs who can be made SPO and thereby by fit to represent under ITP Act as SPO for DIU/SD in connection with case FIR No.572/07 u/s 376/506/34 IPC & 5/ITP Act, P.S. Hauz Khas. But the SI without confirming the facts informed that Inspr. Piyush Minz. in DIU/SD has already been looking after this case and sought approval for orders in his name as SPO to investigate the above case. Whereas, as per notification dated 14.12.2008 issued by Delhi Administration only SDPOs, SHOs and ACP/Crime are entitled to investigate such cases. This clearly shows that you, SI Surendra Singh Bisht No.D-804 have given wrong information to the senior officer without confirming the facts. It shows your lackadaisical attitude and poor functioning being a Incharge of Legal Cell/SD and could have led to a very embarrassing position for the department as it was a court related issue.
You, SI Surendra Singh Bisht No.D-804, are therefore, called upon to explain your position for the said lapse. Your reply in this regard should reach this office within 7 days positively, failing which it will be presumed that you have nothing to say in your defence and the matter will be decided on merit as deemed fit.
5. The applicant vide Annexure A-11 letter dated nil submitted the following explanation:
I prepared the note-sheet and above mentioned facts were mentioned in the note-sheet. I put up the note-sheet to the then Inspr.Legal Cell/SD and after discussing with him. Inspector Piyush Minz of DIU/SD was recommended to investigate the above said case. It is worth mentioning here that Inspector Piyush Minz was already investigating the case and he was attending Court in connection with this case. There is no malafide on my part. I was not fully aware about the contents of standing order to appoint the SPO in I.T.P. Act.
Moreover, worthy Addl. DCP/SD has approved ACP/H.Khas to investigate the case.
6. As the Addl. Dy. DCP who is also the disciplinary authority in the case of the applicant was not satisfied with his aforesaid explanation, issued the Annexure A-1 show cause notice dated 03.07.2009 stating that he, without confirming the facts, informed that Inspector Piyush Minz in DIU/SD had already been looking after the case and sought orders in his name as SPO to investigate the case, whereas, as per notification dated 14.12.2008 issued by Delhi Administration, only SDPOs, SHOs and ACP/Crime are entitled to investigate such cases. By the said show cause notice, the disciplinary authority informed the applicant that his aforesaid action of giving wrong information to the senior officer without confirming the facts showed his lackadaisical attitude and poor functioning as an Incharge of Legal Cell/SD and it could have led to a very embracing situation for the department as it was a Court related issue.
7. In response to the aforesaid show cause notice, the applicant submitted his Annexure A-12 reply dated nil which is as under:
I prepared the note-sheet and above mentioned facts were mentioned in the note sheet. I put up the note sheet to Inspector Legal Cell and after discussing with him, Inspector Piyush Minz of DIU/SD was recommended to investigate the above mentioned case as he was already investigating the case. There is no malafide on my part. I was not fully aware about the contents of standing order to appoint the SPO in ITP Act. Though err is the human.
8. The disciplinary authority considered the aforesaid reply of the applicant but not found convincing and issued the Annexure A-1 show cause notice dated 03.07.2009 for awarding the punishment of censure to him. Again, having not satisfied by the aforesaid reply to the show cause notice, the disciplinary authority vide Annexure A-2 order dated 30.09.2009 observed that the applicant was mainly pleading that a case FIR No.572/07 u/s 376/506/34-IPC & 5/ITP Act, was registered at P.S. Hauz Khas and after investigation of the case, a cancellation report was filed on 25.4.2008 but the Honble Court did not accept the cancellation report and directed DCP/South Distt to get the matter investigated further, owing to gravity of allegation, by appointing an SPO (not below the rank of Inspr.) as required under the Act. The investigation of the case was already being carried out by DIU/SD and the case was being investigated by Inspr. Piyush Minz of DIU/SD. He prepared the note-sheet stating above facts and put up the same to Inspr. Legal Cell after discussing about it with him. The disciplinary authority has also considered the submissions of the applicant that Inspector Piyush Minz of DIU/SD was recommended to investigate the case as he was already investigating the same and he was not aware of the contents of the notification dated 14.12.2008. The Disciplinary Authority, however, having found that the aforesaid plea of the applicant was not satisfactory and justified, imposed the minor penalty of Censure upon him.
9. The applicant made the Annexure A-13 appeal dated nil before the Joint Commissioner of Police, Southern Range, New Delhi but vide its Annexure A-3 order dated 22.12.2009 the same was rejected stating that the Additional DCP/SD clearly asked to put up a list of IOs who can be made SPO and fit to represent under ITP Act but the appellant submitted the note mentioning the names of Inspectors who were posted in DIU/SD and sought approval for orders in respect of Inspr. Piyush Minz of DIU/SD as SPO. He has also submitted wrong information to the senior officers without verifying/going through the concerned Notification(s)/ITP Act despite clear direction of Addl. DCP-I/SD. Thus the appellant was found negligent and held that the punishment awarded to him by the disciplinary authority was not excessive and it was ordered to be maintained.
10. The applicant has challenged the aforesaid impugned orders of the Disciplinary Authority including the show cause notice and the Appellate Authority on the following grounds:-
(i) The respondents failed to appreciate the submission of the applicant that there was no Notification dt. 14.12.2008 issued by the Delhi Admn. as mentioned in the SCN dt. 3.7.09 and the Orders dt. 30.9.09 & dt. 22.12.09 in which it has been stated that only SDPOs, SHOs and ACP/Crime are entitled to investigate the cases under ITP Act. Therefore, non-consideration of the same by the applicant is totally illegal and the applicant cannot be punished for violation of something that was not in existence.
(ii) The respondents failed to appreciate that neither the applicant nor the higher authorities were aware of the existence of the Notification dated 14.12.2008. Otherwise, the competent authority would not have given the approval of the name of Insp. Piyush Minz.
(iii) The respondents failed to appreciate that the role of the applicant was only to the extent of informing that the case was already being investigated by Inspr. Piyush Minz. Moreover, he had also given the names of other two Insprs and it was for the competent authority to appoint even any officer also, using his discretion.
(iv) There was not even a shred of mis-information or the element of misguidance to the senior officer by the applicant and his only fault was that he had apprised the Addl. DCP that the case was being investigated by Inspr. Piyush Minz of DIU and also named the three Inspectors posted in DIU.
11. The respondents in their reply have disputed the contentions of the applicant. They have submitted that the applicant should have been aware of the notification dated 14.12.1988, issued by the then Delhi Admn.-Home (Police)/Estt. Deptt. with endorsement No. 78/Spl. C&T (AC-II) dated 03.01.1989. As per the said notification, all the ACPs working as SDPOs, all the SHOs and all the ACPs of Crime Branch are entitled to be appointed as SPOs. But in the present matter the applicant misguided then Senior Officers by putting up the name of 3 Inspectors including that of Inspr. Piyush Minz who did not come under the said notification on the Note Sheet without going through the remarks given by the then Addl. DCP/SD, as well as the standing instructions on the subject. They have also submitted that the applicant did not bother to make any efforts to go through the contents of said Notification for approval of the SPO in ITP Act. Further, they have submitted that the applicant himself has admitted that it was his fault to apprise the then Addl. DCP/SD that the case was being investigated by Inspr. Piyush Minz. and, therefore, it does not matter whether the fault was simple or not.
12. we have heard the learned counsel for the applicant Shri Anil Singal and the learned counsel for the respondents Ms. Sumedha Sharma. In view of the above facts and circumstances of the case, the question to be considered is whether there was any misconduct at all on the part of the applicant or not. By Annexure A-10 letter dated 21.11.2008, the Addl. Dy. Commissioner of Police sought the explanation of the applicant for giving wrong information to the senior officer without confirming facts. The alleged wrong information was that the applicant put up a list of IOs who can be made SO and represent the case FIR No. 572/07 u/s 376/506/34-IPC & 5/ITP Act, P.S. Hauz Khas but he without confirming the facts informed that Inspr. Piyush Minz in DIU/SD has already been looking after this case and sought approval for orders in his name as SPO to investigate the above case, whereas, as per notification dated 14.12.2008 issued by Delhi Administration, only SDPOs, SHOs and ACP/Crime are entitled to investigate such cases. His explanation was that (i) he was not aware of the said notification dated 14.12.2008, (ii) he put up the note after discussing the matter with the Inspector Legal Cell/SD and (iii) Inspector Piyush Minzs name was indeed in the list because he was already investigating the case and he was attending court in connection with such cases. In the reply statement, the respondents stated that the notification mentioned in their aforesaid Annexure A-10 letter dated 21.10.2008 was the one dated 14.12.1988 and not 14.12.2008. It shows that neither the applicant nor the Inspector Legal Cell/SD who was his immediate superior officer nor the Addl. DCP-1/SD who approved the list of I.Os to be made as SPOs, was aware of any notification in this regard. Further, it is seen that the Addl. Dy. Commissioner of Police himself has not applied his mind before issuing the Annexure A-10 letter dated 21.11.2008 seeking the explanation of the applicant as in that letter also, he was referring to the notification dated 14.12.2008 which is a non-existent one.
13. The applicant stated before the disciplinary authority that since there was no such notification, the allegation made against him was wrong. It was only in the reply filed in this O.A. that the respondents realized that the notification they were referring to was the one issued on 14.12.1988. We, therefore, consider that the allegation made against the applicant was not only vague and the applicant could meet the same fairly but it also does not contain any element of misconduct. The lapse on the part of the applicant could at best be considered only as a mistake or error.
14. Looking at the issue from different view point also, it is seen that the involvement of the applicant in the alleged charge was minimal. He was only a subordinate under the Inspector Legal Cell/SD and above him is the Addl. DCP-I/SD himself. The expectation of the applicant that he was not aware of the existence of the notification dated 14.12.2008 was equally applicable to others also but in greater degree. At least, the Inspector Legal Cell/SD who is the applicants immediate supervisor should have been aware of the said notification. It was through him that the applicant has put up the note to the Deputy Commissioner. But strangely, no charge was levelled against him and the applicant alone was punished. Further, though censure is the minor punishment, it has got serious adverse effect on the career prospect of the employee concerned.
15. In view of the above facts and circumstances of the case, we allow the O.A. and quash and set aside the impugned Annexure A-1 show cause notice dated 03.07.2009, Annexure A-2 and Annexure A-3 orders of the disciplinary authority and the appellate authority dated 30.09.2009 and 22.12.2009 respectively, with all consequential benefits. No order as to costs.
( Dr. A.K. Mishra ) ( George Paracken )
Member (A) Member (J)
`SRD