Central Administrative Tribunal - Delhi
Rakesh Singh Rana vs Govt. Of Nct Of Delhi on 7 February, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A. No. 4374/2012
Reserved on : 09.09.2013
Pronounced on : 07.02.2014
HONBLE MR. SUDHIR KUMAR, MEMBER (A)
HONBLE MR. A.K. BHARDWAJ, MEMBER (J)
Rakesh Singh Rana,
PIS No.28990603
SI (Ex.) in Delhi Police
Aged about 35 years
S/o Sh. Praveen Singh Rana,
R/o 4-J, Police Colony,
Model Town-II, Delhi-9. .. Applicant
(By Advocate : Shri Anil Singal)
Versus
1. Govt. of NCT of Delhi,
Through Commissioner of Police,
PHQ, I.P. Estate,
New Delhi.
2. Joint Commissioner of Police,
South Eastern Range,
PHQ, I.P. Estate,
New Delhi.
3. DCP (East Distt.),
Through Commissioner of Police,
PHQ, I.P. Estate,
New Delhi. .. Respondents
(By Advocate : Mrs. Renu George)
O R D E R
Mr. Sudhir Kumar, Member (A):
The applicant, in this OA, is a Sub Inspector with Respondent No.3, and was under training as SI (Executive), and attached with Police Station, Mandawali for completion of various portions of the training course. He was posted in Division-I of the Police Station, and attached with ASI Harphool Singh, who was the Division Officer of the Division-I for the purpose of training, which, according to him, is reflected by the duty roster of the PS Mandawali, which was attached to the OA at Annexure A-5.
2. The applicant suddenly received a Show Cause Notice dated 08.10.2010 (Annexure A-1), impugned by him in the present proceedings, proposing a punishment of `Censure, on the allegation that on the complaint of a member of the public, filed with the Public Grievance Commission, regarding encroachment on footpath at Madhu Vihar Crossing, near Narwana Apartments, an inquiry was got conduced, which had revealed that small idols were kept on the base of a Peepal Tree, which was built a couple of months back, and that the applicant, and Head Constable Ram Krishan, and Constable Radhey Shyam, had failed to perform their duties properly to check such encroachments in the area under their jurisdiction.
3. The applicant has alleged that the original complaint was not disclosed to him, and neither a copy of the original complaint, nor a copy of the initial inquiry report, which had specifically formed the basis of the Show Cause Notice, were supplied to him, but that they were asked to submit their reply to the Show Cause Notice dated 08.10.2010. The applicant has submitted that he submitted his reply, even in the absence of the original complaint, and the initial preliminary inquiry report, had not been made available to him, explaining the facts, and giving reasons of his being innocent, and submitting that even if it is true that any encroachment has, in fact, taken place, since it is the ASI, Harphool Singh, who was Incharge of the Division-I, and the applicant was only a trainee working under him, therefore, ASI Harphool Singh can only be held responsible for that.
4. Respondent No.3 did not accept the plea of the applicant, and confirmed the charge as made out in the Show Cause Notice vide his Order dated 15.03.2011, Annexure A/2, and awarded a penalty of `Censure' upon him, relying upon the original complaint from the member of the public, and the preliminary inquiry report, holding that they cannot escape their constructive liability for the improvements made in the encroached premises.
5. The applicant filed an appeal before the Appellate Authority against this order of punishment, explaining the back-ground of the case, and raising a number of questions of law and facts, through his appeal placed at Annexure A/6 to the OA, but vide his Order dated 26.10.2012, impugned at Annexure A/3, Respondent No.2 rejected the appeal of the applicant, which the applicant has assailed, by submitting that the Appellate Authority had not applied its mind to the facts of the legal points raised in the appeal, and had only mechanically endorsed the frivolous and untenable reasons given by the Disciplinary Authority, while confirming the Show Cause Notice, with a non-speaking and a cryptic order.
6. The applicant has taken the ground that the impugned orders are illegal, arbitrary, malafide, unjustified and unreasonable, and in violation of the principles of natural justice, based on misreading of evidence, and vindictive in nature.
7. The applicant had further taken the ground that since he was only a trainee attached to the ASI, Division-I of the PS, for the purpose of training, he cannot be held guilty at all. He also took the ground of the original complaint of the member of the public, and the First Inquiry Report, that formed the basis of the Show Cause Notice, not being supplied to him.
8. The applicant has assailed the actions of the respondents in having fixed deemed liability upon him, and submitted that no one can be punished on the basis of deemed charges. He had further submitted that while the charge levelled against him was regarding encroachment, but the penalty was imposed on an extraneous charge of improvements in the encroached premises.
9. The applicant has also assailed that the respondents have failed to specify and to make out as to what action/omission on the part of the applicant amounts to a misconduct, for which, he is liable to be punished, that too when he was only a trainee at the relevant point of time. He had assailed that the respondents have failed to appreciate that the charge against the applicant is totally vague, unclear and unspecific, since no specific act of negligence or dereliction of the duty, on the part of the applicant, has been assigned or quoted, which can be termed as misconduct. He has submitted that both the allegations levelled against him in the charge, as well as the findings of guilt, are based on assumptions and presumptions, and are, therefore, liable to be set aside. He also submitted that the respondents have failed to appreciate that the applicant has not committed any misconduct, and had performed his duty diligently, and, therefore, the orders of punishment imposed upon him are arbitrary, unjustified, and not sustainable in the eyes of law.
10. In the result, the applicant has prayed for quashing and setting aside the impugned orders, Annexures A/1 and A/2, through which the punishment of `Censure, had been levelled upon him, and then subsequently confirmed, and apart from costs, any other order(s), which this Tribunal may deem just to pass, in the facts and circumstances of the case.
11. The respondents filed their counter reply on 13.03.2013, strongly opposing the averments in the OA. They had pointed out that a Show Cause Notice was issued to the applicant to `Censure' his conduct on the allegation as contained in the complaint regarding alleged chronic traffic congestion in Madhu Vihar near Narwana Apartments, while he was posted in PS, Mandawali, and a member of the public, who had complained, had also mentioned encroachment by the vendors, and existence of temporary sheds on the footpath. When an inquiry was got conducted, it was revealed that even small idols of Lords - Shani and Hanuman - had been kept at the base of a Peepal Tree, which base for the idols was built couple of months back. It was submitted that from this, it appeared that the concerned Divisional and Beat Officers were not performing their duties properly, and had failed to check such encroachments in the area. It was pointed out that the reply of the applicant to the Show Cause Notice was considered in detail, and he was also heard in person, and after carefully considering the written and oral submissions, and not finding them to be convincing, the Deputy Commissioner of Police (East District) had passed an order of `Censure' dated 15.03.2011. When the applicant had filed an appeal against this order of `Censure' to the Appellate Authority, the Joint Commissioner of Police (JCP), South Eastern Range, the Appellate Authority had also considered his appeal along with the records, and again heard him in person, and when his contentions were not found to be convincing, his appeal was rejected, through orders dated 26.12.2012, because of which the applicant has filed this OA.
12. The respondents further pointed out that the then SHO, Mandawali, had reported that it was the applicant who had been detained to perform his duties as Division Officer in the Division in question. It was further submitted that during the departmental inquiry, the applicant did not make any request to provide him a copy of the complaint of the member of the public, and also a copy of the initial inquiry report, before submitting his reply. It was, therefore, submitted that the actions of the respondents were justified, and proper opportunity of making both written and oral submissions was provided to the applicant, and all the pleas taken by him were considered, but not found to be convincing, because of which, firstly, the Disciplinary Authority, and then the Appellate Authority, had, even after giving him personal hearing, rejected his contentions.
13. It was submitted that it was clearly established that the applicant had failed to check encroachments in the area of his Division, during his posting in the Division Office, and, in the result, it was prayed that the applicant is not entitled for any relief, and the present OA is liable to be dismissed with costs. The applicant did not file any rejoinder before the case was taken up for hearing.
14. Heard. During arguments, the learned counsel for the applicant took as his first legal ground his objection that neither the copy of the original complaint of the member of the public was given to the applicant, nor a copy of the initial/preliminary inquiry report was supplied to him. When asked as to why he did not ask for these documents to be supplied to him, before replying to the Show Cause Notice, the learned counsel for the applicant submitted that the applicant cannot be expected to ask the respondents for copies of those documents, as he cannot ask them to bring evidence on record against him. He had further assailed that the applicants guilt has been taken to have been proved, behind his back, and the allegations have been deemed to have been proved, while they were not so proved.
15. The learned counsel for the applicant had thereafter relied upon the Honble Apex Courts Judgement in Kuldeep Singh v. Commissioner of Police & Others, (1999) 2 SCC 10, and, in particular, Para 39 thereof. It is seen that in that case the Honble Apex Court had mentioned that a document which was not mentioned in the chargesheet, has to be excluded from consideration, as it could not have been relied upon or even referred to by the Disciplinary Authority. He, therefore, submitted that if a chargesheet is lacking any information, the applicant is permitted to take benefit from such defective chargesheet. The learned counsel for the applicant had thereafter relied upon the Honble Apex Court Judgement in Union of India & Others v. Gyan Chand Chattar, (2009) 12 SCC 78, and in particular, Para 34 of that Judgment, in which the Honble Apex Court had reiterated its earlier finding in Sawai Singh v. State of Rajasthan, (1986) 3 SCC 454, wherein it was held that in a domestic inquiry, the charge must be clear, definite and specific, as it would be difficult for any delinquent to meet the charges, if they are vague. The Honble Apex Court had further held that evidence adduced should not be perfunctory, and even if the delinquent does not take the defence, or make a protest against the charges as being vague, that does not save the inquiry from being vitiated for the reason that there must be fair play in action, particularly in the cases of orders involving adverse or penal consequences.
16. The learned counsel for the applicant further submitted that the prosecution case has to stand on its own legs, and he had, thereafter, taken us through the impugned Show Cause Notice, Annexure A/1, page 10 of the OA, to try to show that the charges, as made out in the said Show Cause Notice, were not specific, and that the charges were vague, and did not specify as to how the applicants conduct amounts to a misconduct? He had also alleged that the inquiry was only perfunctory, and that even thereafter, the Disciplinary Authority had only fixed constructive liability upon the applicant, which, he had assailed, is insufficient for the purpose of imposition of penalty upon the applicant. He had pointed out to the duty roster as annexed by him at pages 16 and 17 (Annexure A-5) of his OA, to try to show that Division-I was headed by ASI Harphool Singh, and HC Jitender, in which there were three Beats, and the name of the applicant was not shown against any of the Beats shown therein, in the duty chart.
17. The learned counsel for the applicant thereafter cited the Delhi High Court Judgement in the case of Union of India v. Shri Yogesh Kumar in WP(C) No.6139/2008, pronounced on 05.09.2008, in which the Honble High Court of Delhi had held that any extraneous material, which is not put to the delinquent officer, cannot form the basis of penalty imposed upon him.
18. The learned counsel for the applicant had thereafter took shelter behind this Tribunals Judgement dated 28.06.1999 in Shri Vijay Singh v. Government of NCT of Delhi and Others, AISLJ 2000 (3) CAT Page 40, in which it was held that a copy of the preliminary inquiry report ought to have been supplied suo moto to the delinquent at the initial stage itself, along with summary of allegations, even if no specific request had been made by the delinquent Government official in this regard. In the case of Vijay Singh (supra) in spite of specific requests made by the applicant for a copy of the preliminary inquiry report, the same was not supplied to him, because of which the OA had been allowed by a concurrent Bench.
19. The learned counsel for the applicant further took shelter behind the Honble Apex Courts Judgement in Government of A.P. and Other v. A. Venkata Raidu, (2007) 1 SCC 338 to submit that Honble Apex Court has held that the chargesheet should not be vague, but should be specific, and it was held that when the charge was not specific, no findings of guilt can be fixed on that basis.
20. Lastly, the learned counsel for the applicant had submitted that the respondents have not produced any proof in respect of their contentions, as made out in their reply to Para 4.3 of the OA, that it was the applicant who was detained to perform his duties as Division Officer in the Division in question, as no supporting proof or documents have been produced by the respondents in support of these averments.
21. In the reply arguments, the learned counsel for the respondents emphasized upon the replies to paras 4.5 and 4.6 of the OA, and submitted that the applicant had not made any request at any stage to provide copies of the complaint and of the preliminary inquiry report, before submitting his reply to the Show Cause Notice, and that the then SHO, Mandawali, had reported that the applicant had been detailed to perform the duty as the concerned Division Officer during the period concerned.
22. She had further assailed that in the submission made by the applicant in his statutory appeal, filed before the Appellate Authority, Joint Commissioner of Police, he had contested that it was ever reported that any fresh encroachments had taken place, and that he was not performing any duties of an independent Division Officer, as the part of his training. She had pointed out, and also explained the difference between the `Censure' proceedings, relating to imposition of minor penalty of censure, and the regular departmental inquiry proceedings, for imposition of a major penalty, and had submitted that under Rule 6(viii), for imposition of minor punishments under the Delhi Police (Punishment & Appeal) Rules, 1980, the opportunity provided by the respondents to the applicant was sufficient, and any further documentation required by the applicant, in order to meet the charges levelled against him, could have been supplied to him, on request, if he had made any such requests at the appropriate stages, and points of time, and that no violation of principles of natural justice had taken place.
23. To our mind, the whole case turns on the wordings of the impugned Show Cause Notice dated 08.10.2010, Annexure A/1, and the impugned order of punishment dated 15.03.2011, Annexure A/2. It is seen that the Show Cause Notice had stated as follows:
SHOW CAUSE NOTICE Sh. Amrinder Singh, R/o 153 Mahila Apartments, 76, I.P. Extension, Delhi, filed a complaint with the public grievances commission against the chronic traffic congestion at the Madhu Vihar crossing, near Narwana Apartments. He has also mentioned that there is encroachment by the vendors and temporary sheds on the footpath. An enquiry was got conducted into the matter which revealed that the small idols of Lords Shani and Hanuman were kept at a base of a Peepal Tree. On enquiry and the interaction with the complainant it was found that this base was built 4/5 months back. Hence, it seems that the Divisional and Beat staff of PS Mandawali are not performing their duties properly and they have failed to check such encroachments in the area. This act, on the part of SI Rakesh, D/325, (Division Officer), HC Ram Kishan, 2114/E and Const. Radhey Shyam, 1055/E, (Beat Officers), amounts to gross negligence, carelessness, and dereliction in discharge of their official duties.
They are, therefore, called upon to show cause as to why their conduct should not be censured for the above said lapse. Their reply, if any, in this regard should reach to this office within 15 days from the date of its receipt, failing which it will be presumed that they have nothing to say in their defence and the matter will be decided ex-parte.
(Emphasis supplied)
24. Here, from the very reading of the words it seems shows that the contention of the learned counsel for the applicant that the charge was not specific, has merit.
25. In the impugned order of punishment, Annexure A/2, the Disciplinary Authority has recorded in Para 2 of his findings as follows:
"The Show Cause Notice was served upon them and they have submitted their reply in response to it. In their reply they pleaded that they have posted in this Sub-Division and Beat since last 4 months and the alleged encroachment was took place 2 years earlier. No fresh construction/encroachment has taken place during their posting. In this regard a report has also been called from SHO/Mandawali, in his report he has stated that some part of alleged encroachment took place earlier to April-2010. A Chabootra was already there but some small idols put on the base later on. The undersigned has carefully gone through the report received from the SHO and reply submitted by them. They are also heard in O.R. on 15.03.11. The reply submitted by them are not found convincing with the plea taken by the Division and Beat Officer. They cannot escape constructive liability for the improvements in the encroached premises. Hence the Show Cause Notice for Censure issued to them is hereby confirmed and the conduct of SI Rakesh, D-325 & HC Ram Kishan is hereby Censured.
(Emphasis supplied)
26. In this also, in the joint notice for punishment of `Censure', issued to two delinquents, it has been held that they cannot escape constructive liability for the improvements in the encroached premises. There is, therefore, merit in the contention of the learned counsel for the applicant that the very use of the constructive liability demolishes the very stand of the respondents on the basis of which they have imposed the punishment of `Censure' upon the applicant.
27. The learned counsel for the respondents had very valiantly defended the actions of the respondents in her arguments, relying upon the counter affidavit filed on 13.03.2013, but we find merit in the contention of the learned counsel for the applicant that at least the original complaint of the member of the public ought to have been supplied to the applicant, if not, also a copy of the report of the preliminary inquiry conducted, to enable him to be able to defend his case properly. Since the contents of those two documents, one most essential to be supplied to him, and second - which may have been discretionary for the respondents to supply to him, were not put to the delinquent officer, they cannot form the basis of a decision to impose penalty upon him.
28. The applicant might have been negligent and lackadaisical in the performance of his duties during his training, and taken no actions to control the encroachments, as was expected of him as a Police Officer, where he was In-charge of the Division, or was only a part of the Beat under the Division Office concerned, but the procedural irregularities committed by the respondents in imposing the penalty, as they have imposed upon him, would enure to the applicant the protection of the Judgements, which were cited by the learned counsel for the applicant.
29. We have gone through the inquiry report file, as submitted by the learned counsel for the respondents, after the completion of her arguments. But it appears that supplying insufficient information regarding the charge, which the applicant was expected to meet, to him at the time of service of the Show Cause Notice upon him, proves fatal to the impugned orders of punishment imposed upon him by the Disciplinary Authority, and confirmed by the Appellate Authority.
30. In the result, the OA is allowed, and the impugned orders are set aside, but there shall be no order as to costs.
Registry is directed to return the departmental record, produced by the learned counsel of the respondents, to her.
(A.K. Bhardwaj) (Sudhir Kumar) Member (J) Member (A) /nsnrsk/