Central Administrative Tribunal - Delhi
Hon Ble Mr. Justice M. Ramachandran vs Government Of Nct Of Delhi on 24 September, 2008
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 139/2008 New Delhi this the 24th day of September, 2008 Honble Mr. Justice M. Ramachandran, Vice Chairman (J) Honble Mr. N. D. Dayal, Member (A) Munender Singh, S/o Late Shri Krpal Singh Sirohi, R/o C Block, Gali No.2, H.No.16, Dayalpur Extension, Delhi. Applicant (By Advocate Ms. Priyanka proxy for Shri M.K.Bhardwaj ) VERSUS Government of NCT of Delhi, Through the Commissioner of Police, PHQ MSO Building, IP Estate, New Delhi. The Joint Commissioner of Police, New Delhi Range, G-7, New Delhi. Addl. Deputy Commissioner of Police, East District, Delhi. Respondents (By Advocate Shri R.N. Singh) O R D E R (Honble Mr. Justice M. Ramachandran, Vice Chairman (J) :
Final order issued by Additional Deputy Commissioner of Police (East), Delhi dated 21.8.2007 (Annexure A-1) and the order of Joint Commissioner of Police dated 24.12.2007 (Annexure A-2) made in the appeal are under challenge. Applicant is a Head Constable. By these orders he has been imposed with the penalty of withholding of one increment temporarily for a period of one year. It has been alleged that the applicant while posted on duty on 5.1.2007 had not registered an FIR intentionally, and disciplinary action for minor penalty proposed.
2. In the course of his duty intimation came to him regarding theft of a bag and he was deputed to go over to the place of concurrence. The couple present there had complained about the theft made from their car. But the allegation was that the applicant only made entry in the NCR register showing items as missing and had filed the PCR Call. On the next day, FIR had been registered on the complaint of Arvind Kumar, the complainant. Thereupon, it has been alleged that the conduct of the Head Constable was not justified.
3. The defence of the respondents was that there was a specific request in the form of instructions from the complainant on 5.1.2007 that an FIR was not to be registered, and he wanted only immediate steps of an NCR.
4. He also had put forward a stand that only the Station House Officer who was at the Police Station was the competent authority to register FIR. No Instructions had been given to him either.
5. An enquiry had been held, and the testimony of the complainant was that he had instructed the applicant not to file an FIR. Also a circumstance was revealed that when missing items included credit cards issued by the Banks on their instructions alone, on the following date an FIR was got registered.
6. Mrs. Priyanka Bhardwaj had led us to the relevant aspects including the statement of the witnesses, and more especially the findings of the Enquiry Officer. There was request for an entry to be made in the NCR register showing items missing and the factum of communication by the PCR call. Alternate submission is that SHO was alone competent to record FIR, he had not done so, in spite of noticing the events and by any stretch of imagination it could not have been possible to blame the applicant. Consequently, charge was not sustainable, and penalty advise improper.
7. With reference to the counter statement filed Mr. R.N. Singh Government Counsel submits that there was a breach of duty on the part of the applicant which was actionable. The applicant had a duty to take steps for securing an FIR. Intentionally, so as to avoid botheration and responsibilities that might have been required to be carried out by recording an FIR, the applicant had used short cut method. This was against the ethics of the Department and short fall appropriately had to be dealt with. He submits that since the procedure for imposition of the penalty has been gone through, no interference is called for.
8. But, however, we feel the department has not justifiably dealt with the cause of the applicant when it is evident that prima facie no fault was there. It could not have been possible for him to register an FIR from a person who was unwilling to adopt the course. Further the finding of the Enquiry Officer (Annexure A-6) is conclusive enough to assume there was no cause made out for initiation of proceedings against the applicant. We may extract relevant portion of the discussion of the enquiry officer and his conclusion as herein below:-
It is a primary and utmost duty of a police officer to register a criminal case as and when the commission of an offence is noticed, but the defaulter did not heed to the nature of offence and lodged a missing report instead of registering a theft case. However, the SHO too cannot skip his responsibility because all the facts by way of briefing as well as report lodged by the defaulter vide DD No.35-A was very much aware of the facts and he should have acted accordingly. Mere sending a report against his subordinate do not suffice. The SHO was very acquainted with the facts and non-registration always in the purview of SHO.
He had found that SHO might have been the person answerable so as to suggests that the applicant was not at fault.
9. Taking totality of the facts and circumstances of the case, we quash the impugned orders. We are told that the conflict of judgments as to whether an FIR is to be recorded un hesitatingly and on all occasions or whether the course is to be followed after a preliminary report has prompted the Honble Supreme Court to refer the question itself to a larger Bench. This also could be used by the applicant as an escape route. Principally it has not been possible for the respondents to prove the sting in the allegations made against him that he had adopted a course intentionally. More over there are extenuating circumstances as appearing in his favor.
10. We hold that the applicant will not be subjected to any disabilities consequent to the above impugned orders as far as his career is concerned. No order as to costs.
( N. D. Dayal ) ( M. Ramachandran) Member (A) Vice Chairman (J) sk