Central Administrative Tribunal - Delhi
Inspector Jagdish Yadav vs Government Of Nct Of Delhi Through on 1 August, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI Original Application No.4212 of 2010 This the 1st day of August, 2011 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE DR. RAMESH CHANDRA PANDA, MEMBER (A) Inspector Jagdish Yadav D-1/838 (PIS No.16830020) R/o A-21, Neb Enclave, Gali Friday Market, Neb Sarai, New Delhi. Applicant ( By Shri M. K. Bhardwaj, Advocate ) Versus 1. Government of NCT of Delhi through Commissioner of Police, Police Headquarters, IP Estate, New Delhi. 2. Joint Commissioner of Police, Southern Range, PHQ, Delhi. 3. Additional Commissioner of Police, South-East Distt., New Delhi. Respondents ( By Ms. Alka Sharma, Advocate ) O R D E R Justice V. K. Bali, Chairman:
Inspector Jagdish Yadav, pursuant to a show cause notice issued to him, has been inflicted the punishment of censure vide order dated 27.2.2010 passed by the disciplinary authority. The order aforesaid has since been confirmed in appeal vide order dated 7.7.2010 passed by the appellate authority. These are the orders which have been challenged by the applicant in this Original Application filed by him under Section 19 of the Administrative Tribunals Act, 1985.
2. The facts of the case reveal that a show cause notice for censure was issued to the applicant on 11.11.2009 on the allegations that the Juvenile Justice Board-II, Delhi, vide orders dated 20.10.2009 in case FIR No.203/09 u/s 376/511 IPC, PS Jaitpur, had stated that JCL Salim had been produced by the IO and JWO on the allegation that he attempted to rape a seven year old girl. The apprehension memo showed that the JCL had been apprehended on 30.10.2009 at 10.10 a.m. at the police station itself. On being asked how the JCL was at the police station, the IO stated that he had been taken for enquiry (poochtach), and as stated by the mother of the JCL, the IO admitted that the JCL was taken from his home at 4.30 p.m. on 29.10.2009 and was at the police station till 11.30 p.m. It was alleged in the show cause notice that although the apprehension of the JCL had been shown as 10.10 a.m. on 30.10.2009, he was actually in the custody of the IO since the previous evening, and that the IO was thus not authorized to keep the JCL at the police station during night. It was further alleged that the procedure adopted by the IO was highly irregular, and against the letter and spirit of the Act. The JCL could not be detained at the police station under any circumstances, not even if he had been apprehended. The IO thus ought to have produced him before any of the members of the Juvenile Justice Board on 29.10.2009 itself. It was alleged that the act of the IO in showing the apprehension as in the morning of 30.10.2009 was a deliberate attempt to overcome the problem by a technicality, and that it was incumbent upon the IO to produce the JCL before any of the members of the Board on 29.10.2009, but he did not do so. This, it was further mentioned, would show poor supervision on the part of the applicant being SHO of the police station.
3. Before we may advert to the reply that came to be given by the applicant, we may mention that the applicant was not the IO of the case, and the allegation against him was as regards poor supervision over the IO. It was the IO who was supposed to produce the juvenile before any of the members of the Juvenile Justice Board. As mentioned above, the applicant was blamed for not keeping necessary supervision over the investigating officer of the case. When this matter came up before us for hearing on 27.7.2011, we required to know from the counsel for parties as to whether any action has been taken against the investigating officer. We have been informed that he too has been proceeded against departmentally and has been censured.
4. The applicant in his reply to the show cause notice stated that the Juvenile Justice Board had called for his explanation about the procedure adopted by the IO ASI Rajpal Singh, and in that connection he submitted a detailed report before the Board and also appeared in person before it on 5.11.2009. After perusal of the report filed by the applicant and hearing the deliberations put forth, the Board dropped the matter and did not pass any further directions in the case. While giving brief facts of the case, the applicant stated that after conducting preliminary enquiry about the alleged incident of attempt to rape, both the prosecutrix and the JCL were referred to AIIMS for treatment/ examination under supervision of ASI Rajpal accompanied by W/ASI Manju and one Ms. Garima from the NGO, Prayatan. He further stated that the investigating officer returned to the police station after medical examination at 11.40 p.m. and as such, the JCL could not be produced before any of the members of the Board being odd hours. The applicant then stated that these facts were brought to the notice of the Board and it was explained that the investigating officer had investigated the case in an upright manner and that there was no intention to violate any rules and regulations framed for dealing with JCL. The explanation given by the applicant in his reply to the show cause notice, it would appear, was two fold one, that he was asked to explain his conduct with regard to the same matter by the Juvenile Justice Board, and the explanation furnished by him was accepted by the Board; as also that it was not possible to produce the JCL before the Board or before any of its members at 11.40 p.m. being odd hours. We may mention that it transpires from the records that the juvenile was produced before the Board within 24 hours. As regards the first plea raised by the applicant, the disciplinary authority rejected the same by observing that His plea that the Honble JJ Board first called his explanation and then was pleased to drop the matter, cannot mitigate his misconduct. As regards the other plea, as mentioned above, the disciplinary authority observed that His another plea that there was no intention to violate any rules and regulations framed for dealing with JCL is also not a valid plea as it is proved that the procedure adopted by the IO is highly irregular. The JCL cannot be detained at the PS under any circumstances. In the appeal carried against the order aforesaid, the applicant mentioned that investigation in the case was conducted in an upright manner, and the JCL was produced within the prescribed time, i.e., 24 hours, as per sub-section (i) of section 10 of the Juvenile Justice (Care & Protection of Children) Act of 2000 and Juvenile Justice (Care & Protection of Children) Rules 2007, as also that the mother of the juvenile was informed about the incident and was allowed to remain with him as per her wish. It was further mentioned that the prosecutrix in the case was from Hindu community, whereas the JCL belonged to Muslim community, and that keeping in view the sensitivity of the situation and safety of the juvenile, he was kept in safe custody in his interest and from law and order point of view. Relevant part of the order passed by the appellate authority reads as follows:
I am not convinced with the pleas of the appellant. As per rule 11(2) The Juvenile Justice (Care and Protection of Children) 2007 when a juvenile in inflict with law is apprehended by the police, the juvenile shall be placed under the charge of Juvenile or Child Welfare Officer of the police station, who shall produce the Juvenile before the Board within twenty four hours, as per sub-section (1) of section 10 of the Act. But in this case the JCL was taken from his home on 29.10.09 at about 4.30 p.m. and kept at the police station while his apprehension had been shown as 10.10 a.m. on 30.10.09. These facts have been admitted by the I.O. in the Honble Court. The I.O. was not authorized to keep the JCL at the PS during the night. The procedure adopted by the I.O. is highly irregular. It was incumbent upon IO of the case to produce the JCL before any of the members on 29.10.09 but he did not do so. This clearly shows poor supervision on the part of the appellant being SHO/Jaitpur. As such, I am not inclined to interfere in this matter. The punishment imposed upon him by the disciplinary authority is not excessive and the same is maintained. The appeal is rejected. [ The relevant extracted portion of the order passed by the appellate authority would show that all that is mentioned is as to what is required to be done in case a juvenile in conflict with law is apprehended by the police. It is mentioned that the juvenile has to be placed under the charge of juvenile or child welfare officer of the police station, who shall produce the juvenile before the Board within twenty-four hours, but the juvenile in the said case was taken from his home on 29.10.2009 at about 4.30 p.m. and kept at the police station, while his apprehension had been shown as 10.10 a.m. on 30.10.2009, and that these facts had been admitted by the IO in the court. It is also mentioned that the IO was not authorized to keep the JCL at the police station during night.
5. We have heard the learned counsel representing the parties and with their assistance examined the records of the case. The plea of the applicant as regards the explanation furnished by him before the Juvenile Justice Board and its acceptance by the Board, has been rejected by the disciplinary authority by stating that it would not mitigate his conduct. What thus clearly transpires is that there are two orders dealing with the same explanation of the applicant by two authorities, one accepting and the other rejecting the explanation. In our view, the order passed by the Juvenile Justice Board, which is performing judicial or quasi judicial functions, should have been given precedence, and in teeth of such an order, a finding of misconduct could not be returned against the applicant. At this stage, we may mention that insofar as, the allegation as regards wrongly showing apprehension of the JCL at 10.10 a.m. on 30.10.2009, whereas he was actually apprehended at 4.30 p.m. on 29.10.2009 is concerned, the same is not against the applicant. It is against the investigating officer. However, if the juvenile had been apprehended at 4.30 p.m. on 29.10.2009 and not at 10.10 a.m. on 30.10.2009, he could be produced before the Board up to 4.30 p.m. on 30.10.2009. That, in any case, it appears to us, would not aggravate the charge of not producing the juvenile before the Board. Be that as it may, as mentioned above, this allegation is not against the applicant. Insofar as, the second plea of the applicant is concerned, it may be recalled that the same has been rejected by the disciplinary authority by stating that the juvenile could not be kept in the police station under any circumstances. It is not in dispute that the juvenile was brought to the police station after medical examination at 11.40 p.m. on 29.10.2009. What should have been right course of action for the investigating officer and for the applicant to supervise in such a situation has not been mentioned. We have not been shown the orders passed by the Juvenile Justice Board by either party, but we may presume that it is the explanation furnished by the applicant which might have found favour with the Board. Insofar as, the appellate authority is concerned, it has only mentioned the procedure that the juvenile had to be produced before the Board within 24 hours. The explanation furnished by the applicant has not been taken into consideration at all. We may mention that when the procedure as may have been required to be followed, and which was not followed, may not be in dispute, it is only the explanation furnished by a delinquent for not following such procedure which has to be taken into consideration, and if the same is not considered, the orders shall have to be set at naught. Whereas, we find that the disciplinary authority rejected the two-fold explanations furnished by the applicant on untenable grounds, the appellate authority would not even consider the same. The applicant had pleaded yet another reason for keeping the juvenile in police station with his mother. The juvenile belonged to Muslim community, whereas the prosecutrix, the victim of the crime, was a Hindu. The applicant pleaded that there could be a law and order problem and even the safety of the juvenile could be in danger. This aspect of the case, even though taken in appeal, has not been considered. There is not even a mention of the said plea in the order passed by the appellate authority.
6. Before we may part with this order, we may mention that despite the fact that censure may appear to be a minor punishment prescribed under rules, it is often seen that the same turns out as stumbling block in a big way in the matter of promotion of an officer in Delhi Police. Even though, there are instructions to state that unless the censures may be on the allegations of corruption and moral turpitude, the same may not be taken into consideration in case of promotion, but the law that has evolved is that overall service record of an officer is relevant for the purpose of his promotion. That being so, while proposing to visit a police officer with the penalty of censure, the concerned authority is to give serious thought.
7. In view of the foregoing, this Original Application is allowed. Impugned orders dated 27.2.2010 and 7.7.2010 passed by the disciplinary and appellate authorities respectively, are quashed and set aside. There shall, however, be no order as to costs.
( Dr. Ramesh Chandra Panda ) ( V. K. Bali )
Member (A) Chairman
/as/