Central Administrative Tribunal - Delhi
Inspector Surinder Kumar Verma S/O Late ... vs Government Of N.C.T.D. Through ... on 28 February, 2008
ORDER
V.K. Bali, J. (Chairman)
1. Surinder Kumar Verma, Inspector in Delhi Police, applicant herein, has filed this Original Application under Section 19 of the Administrative Tribunals Act, 1985, calling in question order Annexure A-1 dated 22.05.2007 vide which a decision has been taken to commence regular departmental enquiry against him, order Annexure A-2 dated 06.092007 vide which his representation against the order aforesaid has since been rejected being not maintainable as also order Annexure A-3, summary of allegations on which the applicant is to be departmentally tried.
2. Brief facts of the case culminating into departmental enquiry against the applicant reveal that the applicant was appointed as Sub Inspector in the year 1977 and thereafter promoted to the rank of Inspector in 1993. He was thereafter suspended vide order dated 21.02.2007 issued by DCP/West District. He made representation against the said order and in consideration thereof, the order of suspension was revoked. He was, however, served with order dated 22.05.2007 whereby departmental enquiry was ordered against him on the allegations of not making sincere efforts to arrest the main accused Mr. Rajiv Mehra and his wife Poonam Mehra in relation to FIR No. 641/2006 dated 25.10.2006 under Sections 188/447/34 IPC and 461/466-A of Delhi Municipal Corporation Act pertaining to police station Patel Nagar and FIR No. 28/2007 under Sections 420/206/34 IPC police station Patel Nagar and further not pursuing the bail matters of the aforesaid two accused before Hon'ble Delhi High Court. It is the case of the applicant that for long no action was taken pursuant to order initiating departmental enquiry against him and, thereafter, he made representation on 31.07.2007 for dropping the proceedings against him. The representation was rejected vide order dated 06.09.2007 being not maintainable under Delhi Police (Punishment & Appeal) Rules, 1980. The department instead served summary of allegations on the applicant. The orders and summary of allegations are challenged on the ground that the allegations made against the applicant would not constitute misconduct and the same are vague and flimsy as it has not been mentioned that what were the specific acts and omissions on his part that may constitute an allegation that no sincere efforts were made by him to arrest the main accused. It is then pleaded that at the time of initiation of departmental proceedings against the applicant, he was due for consideration for promotion to the rank of Assistant Commissioner of Police and, therefore, the action of the respondents was mala fide. The applicant has given details of efforts he had made in arresting the main accused and the way and manner he had pursued the cases of the said accused in the courts, from where, he pleads, it is clear that raids were conducted for arresting the accused Rajiv Mehra and his wife Poonam Mehra at their residence R-38, Greater Kailash-I, New Delhi on 19.01.2007, 04.02.2007, 07.02.2007, 17.02.2007 and 18.02.2007. Raids were also conducted at his relatives' houses at Ramjas Road, Karol Bagh and Faiz Road, Karol Bagh on 07.02.2007. His children were also interrogated at his residence in Greater Kailash on 18.02.2007 to find out his whereabouts. SHO/PS Greater Kailash and beat staff of the area were also contacted and briefed to help in arresting the accused. His professional associates were also contacted and interrogated to find out his whereabouts on 04.02.2007. It is the case of the applicant that by his sincere efforts and on the basis of incriminating material that he was able to collect against the accused, the bail applications of the persons accused in the crime were rejected on as many as eight occasions. The details of the bail applications rejected by different courts are:
Bail application of accused Vijay Ahuja by M.M. on 31.12.2006.
Bail application of accused Hemant Madan by ASJ on 06.01.2007.
Bail application of accused Mannu Jairath by ASJ on 06.01.2007.
Bail application of accused Surinder Singh by ASJ on 09.01.2007.
Bail application of accused Manpreet Kaur by ASJ on 09.01.2007.
Bail application of accused Hemant Madan by ASJ on 3.1.2007.
Bail application of accused Manu Jairath by ASJ on 3.1.2007.
Bail application of accused Gurdarshan Kaur by ASJ on 3.1.2007.
It is then pleaded that Mr. Rajiv Mehra, who was constantly evading his arrest, was, however, granted interim relief by High Court of Delhi vide order dated 19.02.2007 directing that he would not be arrested till next date of hearing i.e. 30.07.2007 and all that happened in absence of the applicant. The information regarding proceedings of the matter was received at police station Patel Nagar only at 12.20 p.m. vide DD No. 20-A on the same day by the Duty Officer of P.S. Patel Nagar. At that time, the applicant was present in the office of Joint Commissioner of Police/SR with SHO Patel Nagar where he was called to attend the office along with the case files of FIR No. 641/2006 and 28/2007. Several raids were conducted at the residence of the accused but the house was found locked. Following persons were contacted who were known to Rajiv Mehra, to find out some clues about his whereabouts:-
Inderpal Singh @ Pali S. Harmohinder Singh, R/o 1/16, East Patel Nagar, Delhi.
Kimti Babbar s/o Satpal Babbar r/o 4/13, West Patel Nagar, Delhi.
Rintu Singh s/o Rewal Singh, r/o 36/17, East Patel Nagar, Delhi.
Vinay Gogia s/o M.L. Gogia, r/o 2, East Patel Nagar, Delhi.
Sanjay Sukhija C/o Sukhija Proper, r/o 3/11, East Patel Nagar, Delhi.
It is then pleaded that efforts were made to trace out the addresses of the relatives of the accused person. Residences of in-laws of the accused were also raided when it was revealed that Shri R.C. Khanna and Shri B.S. Mehra father-in-law and brother of the accused respectively resided there. The applicant has given further details with regard to efforts made by him in arresting the main accused and pursuing the cases in various courts.
3. Pursuant to notice issued by this Tribunal, respondents have entered appearance and by filing the counter reply contested the cause of the applicant. In addition to giving details of the case FIR No. 28/2007, it has been averred that the investing officer had not made sincere efforts to arrest the accused Mr. Rajiv Mehra and his wife Smt. Poonam Mehra. Moreover, the matters of quashing of FIR No. 641/2006 under Sections 188 IPC and 461/466 DMC Act, P.S. Patel Nagar and FIR No. 28/2007 under Sections 420/406/34 IPC, P.S. Patel Nagar filed by the accused in Delhi High Court were not pursued properly by him. Due to which, both the accused could not be arrested till 30.07.2007 as ordered by the Hon'ble High Court of Delhi. All this would show that fair and impartial investigation was not conducted by the applicant and the main accused were deliberately not arrested by him. There is no denial of the efforts made by the applicant, reference thereof has been given in the pleadings by the applicant, but it has been averred that the main accused remained at large for more than 53 days.
4. The applicant has filed rejoinder to the reply filed on behalf of the respondents and by and large reiterated the facts pleaded by him in the main Application.
5. Mr. Sachin Chauhan, counsel representing the applicant, vehemently contends that the summary of allegations, as drafted, would not constitute misconduct. It is urged that 'misconduct', as per judgment of the Hon'ble Supreme Court in the case of State of Punjab and Ors.v. Ram Singh Ex. Constable, , has to be such which may involve moral turpitude, must be improper or wrong behaviour, unlawful 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 duties, the act complained of should be of forbidden quality or character. It is further urged that 'misconduct' would mean arising from ill motives; acts of negligence; errors of judgment and innocent mistakes do not constitute misconduct. It is further urged by Learned Counsel that 'misconduct' of not making sincere efforts to arrest the accused would be too vague to enable the applicant to defend his case unless some acts or omissions or commissions, which may be wrongful, are not specifically alleged against him.
6. Mr. Ajesh Luthra, counsel defending the respondents, joins issues on the points raised by the Learned Counsel for the applicant.
7. We have heard the Learned Counsel for the parties and with their assistance examined the records of the case.
8. Whereas we are not inclined to accept the first contention of the Learned Counsel that not taking proper steps in arresting the main accused or in pursuing the cases properly would not be a misconduct at all, we are inclined to accept the contention of the Learned Counsel that the charges are vague and the applicant, in the very nature of such vague allegations, shall not be able to properly defend himself in the departmental proceedings. We are not delving and giving reasons for repelling the first contention of the Learned Counsel as during the course of arguments the same was not pressed.
9. The order Annexure A-1, initiating departmental enquiry against the applicant, recites that investigation of cases in question was entrusted to him. In both the cases Amarjeet Singh was arrested by the applicant and, the main accused Rajiv Mehra and his wife Poonam Mehra were not arrested by him despite clear cut evidence against them. Details of payments received through cheques by Rajiv Mehra and his wife Poonam Mehra have then been mentioned in the order. The relevant part of the order, which may constitute misconduct against the applicant, reads as follows:
It is further alleged that the I.O. has not made sincere efforts to arrest the main accused Sh. Rajiv Mehra and his wife Poonam Mehra. Moreover, the matter of quashing of FIR No. 641/06 Under Section 188 IPC & 461/466 DMC Act PS Patel Nagar and FIR No. 28/07 Under Section 420/406/34 IPC P.S. Patel Nagar, filed by Sh. Rajiv Mehra and his wife Poonam Mehra in Delhi High Court, Delhi was not pursued properly by him. Due to which, both the accused should not be arrested till 30.7.07 as ordered by the Hon'ble High Court of Delhi vide order dated 2.2.2007. All this shows that fair and impartial investigation had not been conducted by the Inspr. and the main accused were deliberately not arrested by him.
The above act on the part of Inspr. Surender Kumar Verma, No. D-I/1061 amounts to gross misconduct, negligence, carelessness and dereliction in the discharge of his official duty and unbecoming of a police officer which render him liable for departmental action under the provisions of Delhi Police (Punishment and Appeal) Rules, 1980.
10. Summary of allegations is almost similarly worded as order dated 22.05.2007 initiating departmental enquiry against the applicant. The applicant has given details of the steps taken by him in arresting the main accused, who were absconding. In the reply filed on behalf of the respondents, as mentioned above, the steps that might have been taken by the applicant are not in dispute but since the accused remained at large for 53 days, it is pleaded that the work said to have been done by him remained only on papers. We are of the considered view that if the case of the department may have been that the applicant had actually not taken the steps as claimed by them and the entire work done by him was only on papers, it could indeed be so said in the order initiating departmental enquiry against the applicant or in the summary of allegations, but the same is not so. This is only while defending the case before this Tribunal, that the plea has been raised that since the accused was not arrested for 53 days, it would mean as if the entire work done by the applicant was only on papers. We repeat that if perhaps this was the case of the department or was so said in the order initiating the departmental proceedings against him or even the summary of allegations, the applicant would have no case to plead that the charges made against him were absolutely vague. The order and summary of allegations only mention that the applicant had not taken sincere efforts, which mean that he had made the efforts but they were not upto the mark. For this, the applicant was to be told as to where he lacked and what precise action he could have taken and had not taken. The charges as they stand are in the realm of conjectures, thus, leaving the applicant to guess as to what would be the case of the department, that he shall have to meet. Procedure to be followed in departmental enquiries as mentioned in Sub-rule (i) of Rule 16 of the Delhi Police (Punishment & Appeal) Rules, 1980 enjoins upon the disciplinary authority to prepare a statement summarizing the misconduct alleged against the accused officer in such a manner as to give full notice to him of the circumstances in regard to which evidence is to be regarded. This would clearly suggest that the misconduct must contain summary of allegations which may be specific, as it is only then the delinquent would have full notice of the circumstances in regard to which evidence is to be regarded. It is seen from the provisions contained in Rule 16 of the Rules ibid that the charge is framed against a delinquent when the entire evidence led by the department is already examined, and it is thereafter that the delinquent is given a chance to lead evidence in defence, if he may so choose. In the facts of the present case, wherein all that has been mentioned is that the applicant did not make sincere efforts to arrest accused Rajiv Mehra and his wife Poonam Mehra, or for that matter, in the matter of quashing the FIR under Sections 188 IPC and 461/466 DMC Act and another FIR under Sections 420/406/34 IPC, he did not pursue the case properly in the Delhi High Court, the applicant would not be put to notice of the circumstances in regard to which the evidence is regarded.
11. We are conscious that courts should not ordinarily quash the charges and set at naught the disciplinary proceedings at the threshold but an employee has a right to know the case made against him that he has to defend. If the charges, therefore, may not disclose specific allegations containing misconduct on the part of the applicant, the court would have no choice but to set aside the same.
12. Misconduct can be of acts of omission and commission. The facts of the present case, and in particular, the order to proceed against the applicant and the summary of allegations would reveal that the applicant omitted to do something. The allegation against him that he had not made sincere efforts can only lead to an inference that he was supposed to do something in the facts and circumstances of the case, but omitted to do so. We are of the considered view that respondents ought to have disclosed the specific acts of omission, which, in the facts of the case, the applicant was required to do in the matter of arresting the main accused or pursuing the petition filed on behalf of the main accused for quashing the FIR against him, and the lack of the same would indeed render the charges to be vague and flimsy, thus depriving him of his right to properly defend himself in the departmental enquiry.
13. In view of the discussions made above, we quash the orders and summary of Allegations Annexures A-1 to A-3 with liberty to the respondents, if so thought fit and proper, to order a departmental enquiry against the applicant by specifying the steps he ought to have taken but he did not take in the matter of arresting the main accused or pursuing the cases filed by the said accused. The parties, in the facts and circumstances of the case, are left to bear their own costs.