Central Administrative Tribunal - Delhi
Mohd. Kaleem vs Govt. Of Nct Of Delhi Through on 15 May, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA No.3705 of 2011
New Delhi this the 15th day of May, 2012
Honble Dr. Dharam Paul Sharma, Member (J)
Honble Shri Sudhir Kumar, Member (A)
Mohd. Kaleem,
Age 54 years,
S/o Sh. Mohd. Salim Kidwai,
R/o 126, PTS, Malviya Nagar,
New Delhi
. Applicant
(By Advocate: Shri S.K.Gupta with Ms. Mahi Zehera)
VERSUS
Govt. of NCT of Delhi through
The Chief Secretary,
Govt. of NCT of Delhi,
Players Building,
I.P.Estate, Delhi
2. Commissioner of Police,
Police Headquarters,
MSO Building,
I.P.Estate,New Delhi,
The Joint Commissioner of Police,
Southern Range,
Police Headquarters,
MSO Building,
New Delhi,
Addl. Commissioner of Police
South East Distt.,
New Delhi,
Respondents.
(By Advocate: Mrs. Alka Sharma)
ORDER
Dr. Dharam Paul Sharma, Member (J) The applicant, an Assistant Sub Inspector in Delhi Police, has filed this application under Section 19 of the Administrative Tribunals Act,1985, inter alia, praying for the following reliefs in para 8 of the application, viz;
(i) quash and set aside the order dated 30.05.2011 (Annexure A-1) to the extent the punishment of censure has been inflicted and also set aside the communication dated 19.02.2011 (Annexure-A-1A) by which, the applicant has been brought in secret list;
Direct the respondents to open the sealed cover in respect of promotion of the applicant to the post of Sub Inspector (E-1 list) in terms of notification dated 22.02.2010 and in case of the applicant is found to fit, the applicant may be promoted to the higher post with all consequential benefits like salary seniority etc.
2. The main grievance of the applicant has been that the appellate authority, while exonerating him from the main charge for which a disciplinary enquiry was conducted, imposed the punishment of censure on an altogether different charge which was not the subject matter of the said enquiry. Furthermore, award of the penalty of censure for failure to conduct systematic investigation could not warrant inclusion of the name of the applicant in list of persons of doubtful integrity as has been done vide Order dated 19.02.2011 as at Annexure-1A. Thus, the order of the appellate authority dated 20.5.2011 (Annexure A-1) and the order regarding inclusion of his name in the secret list dated 19.2.2011(Annexure-1A) have been challenged by the applicant in this application.
3. The applicant was proceeded against departmentally on the following summary of allegation:-
It is alleged against ASI Md. Kalim No.3370/D that while posted at PS Kalka Ji he was entrusted investigation of case FIR No.398/07 U/S 323/341/506/34 IPC. It is further alleged that the above ASI again and again demanded money from, Smt. Bimlesh Devi, the complainant, who is also accused in the above case and threatened her of dire consequences if the demanded money is not given to him whenever she had already given Rs.10, 000/- to the above ASI. On enquiry it was found that Smt. Bimlesh Yadav and her husband namely Mukesh Yadav were arrested by the above ASI but brother of Smt. Bimlesh Yadav who are also co-accused in the above case have not been arrested by the above ASI which shows some kind of favoritism by the above ASI towards accused.
The above act on the part of ASI Mohd. Kalim No.3370D amounts to gross misconduct, carelessness and negligence in discharge of his official duties and unbecoming of a police personnel which renders him liable for departmental action under the provisions of Delhi Police (Punishment & Appeal) Rules-1980.
4. The Inquiry Officer returned the finding of guilt against the applicant in respect of the charge leveled against him. Thereupon, the disciplinary authority awarded the penalty of withholding of his next increment for a period of two years with cumulative effect to the applicant. Against this Order of the disciplinary authority, the applicant preferred an appeal. The appellate authority passed the order on this appeal on 20.5.2011. A copy of this Order is at Annexure A-1, the operative part of which reads as follows:-
I have gone through the appeal and other relevant records. I have also heard the applicant in person on 26.4.2011. In the appeal, the appellant has stated that the case in question was registered on 3.5.2007, and the investigation of the case was entrusted to him on 5.5.2007 when section 308 IPC was added in the case. He scrutinized the case file, and on the basis of available evidence arrested Smt. Bimlesh Devi and her husband Mukesh Kumar Yadav. Since two more persons who were reported to be the brother-in-law of St. Bimlesh Devi were also suspected to be involved in the case, hence, Smt. Bimlesh Devi and her husband Mukesh Kumar Yadav were interrogated. They stated that they had no brother and they are the residents of Delhi. On 21.10.2008, the appellant sought written permission from ACP/Kalkaji and visited the native village of Mukesh Kumar Yadav in Mainuri, UP, and recorded the statements the neighbours of accused Mukesh Kumar Yadav. They stated that accused Mukesh Kumar Yadav has three other brothers and they are living somewhere in Delhi. Their residential address at Delhi was not known to them. DD entries, in this regard, were lodged in PS Kalkaji. On this, the complainant felt humiliated, and filed complaint before ACP/Kalkaji alleging false and frivolous allegations against him in order to get the IO changed to save her brother-in-law. The IO to whom the investigation of the case in question was entrusted from him (appellant) also could not arrest any co-accused/absconder and finally filed the charge sheet only against two accused persons i.e. Smt. Bimlesh Devi and her husband Mukesh Kumar Yadav, who were already arrested by the appellant.
The allegations leveled against the appellant that he demanded the money from the complainant has not been established during the DE proceeding as there is no corroboration of any PW in support of version PW-4 the complainant Smt. Bimlesh. Moreover, the husband of the complainant shri Mukesh Kumar Yadav had also disclosed that the appellant had never demanded the money from him. The appellant had made efforts to arrest the co-accused persons, and interrogated Smt. Bimlesh Devi and her husband Mukesh Kumar Yadav as the co-accused persons were reported to be their brothers. Since, the appellant had made pressure on them to disclose the whereabouts of their brothers, involved in the above case, and also visited their native village in UP and made enquiries from their neighbours, hence, Smt. Bimlesh Devi complained against him to get the investigation of the case transferred from the appellant to another officer. Since the allegation of demand of money has not been proved during the DE proceedings, it does not hold against the appellant. The only lapse the appellant can be held guilty of will be his inability to conduct systematic investigations in the case and to keep his seniors apprised of the developments in a correct perspective. The very fact that a need was felt to change the appellant from the investigations does not reflect well on the propriety of the investigations being conducted.
Keeping in view of overall circumstances of the case, however, the punishment imposed upon the appellant appears incommensurate with the misconduct/lapses on the part of the appellant, and the same is on the harsher side. In view of this, I reduce the punishment to Censure instead of withholding of his next increment for a period of two years with cumulative effect.
5. Thereupon, the respondents issued further communication dated 19.2.2011 (Annexure IA) with regard to inclusion of the name of the applicant in the secret list which reads as follows:-
With the approval of special Commissioner of Police/Vig., Delhi, the name of ASI Mohd. Kaleem, No.3370/D has been brought on Secret List of D.I. w.e.f. 20.12.2010 (i.e. date of punishment) Vo No.1078-81/Vig./CA (AC-III) dt. 04.02.11 and the same will be reviewed, after three years i.e. 20.12.2013. The gist of allegation is that on the allegation that while posted at PS Kalkaji the investigation of case FIR No.398/07 u/s 323/341/506/34 IPC was entrusted to him. It is alleged that the above ASI was, time and again, demanding money from Smt. Bimlesh Devi, the complainant, who is also accused in the above case and was threatened her of dire consequences for not giving him the demanded money. She further alleged that she had already given Rs.10,000/- to the above ASI. On enquiry, it was found, that the I.O. has not arrested the brothers of Smt. Bimlesh Yadav who are co-accused in the above case.
A copy of this communiqui may be delivered to individual concerned against his proper receipt, which may be sent to this office for record. He can represent for review against withholding of his integrity certificate to Commissioner of Police, Delhi, within six weeks from the date of receipt of this order, if he so desires.
6. The sole contention put forth by the applicants counsel is that the appellate authority did not find the applicant guilty of the charge which was leveled against him. Nevertheless, he was awarded punishment of censure for his inability to conduct systematic investigation in the case and to keep his seniors apprised of the developments in a correct perspective. This charge was never leveled against the applicant and as such he could not have been awarded punishment of censure without this charge having leveled against him and without affording opportunity to the applicant to defend himself against this charge. Furthermore, since the penalty of censure has been awarded for improper investigation and not for lack of integrity, the Office Communication as at Annexure -1A also proceeded and an erroneous premise that he was held guilty for demanding money from Smt. Bimlesh Devi which the appellate authority did not find proved and, therefore, the impugned communication regarding inclusion of his name in the secret list is not sustainable in law.
7. In their counter reply, the respondents, inter alia, stated that the appellate authority has accepted the appeal of the applicant and reduced the penalty to censure instead of withholding of his next increment for a period of two years with cumulative effect. It has further been submitted that the applicant has no legally enforceable grievance as there has been no procedural irregularity. It has further been submitted that the law in this regard is well settled that the courts cannot substitute themselves as the administrative authorities to appreciate the nuances of the evidence on record.
8. At the hearing, the parties reiterated the averments made in their respective pleadings.
9. The law on the issue involved in the present case is well settled. A Government servant can be awarded penalty for any misconduct with which he is charged. In other words, no penalty can be inflicted upon a Government servant for misconduct which has not been leveled against him in the disciplinary enquiry. The appellate authority has not found the charge leveled in the inquiry against the applicant proved, yet proceeded to award penalty of censure on a charge which never leveled against him. The only lapse the applicant could have been held guilty of, according to the appellate authority, was his inability to conduct systematic investigation and to keep his seniors apprised of the developments in a correct perspective. However, the fact remains that he has not been charged with this lapse in the disciplinary proceedings and, therefore, no penalty can be awarded for such a lapse. The learned counsel for the respondents could not adduce any document showing that the applicant was charged by the disciplinary authority for the lapse for which censure has been awarded by the appellate authority. Having carefully perused the records of the case, we find that the lapse for which the appellate authority awarded penalty of censure to the applicant, did not find place in the charge sheet for which the disciplinary enquiry was held and thus the findings on this lapse reached by the appellate authority were without giving an opportunity to the applicant to defend himself. The order of the penalty of censure is thus not sustainable being in violation of principles of natural justice i.e. no person be condemned unheard. He ought to have been given a fair and reasonable opportunity to meet the charge leveled against him before he is punished on it. The impugned order of the appellate authority imposing penalty of censure on the basis of entirely a new charge is vitiated in law for the reason that it is based on the charge different from the one which was actually leveled against him. In law, no punishment can be passed on the basis of charge which was not included in the charge sheet. Since the applicant cannot be punished in law for the charge which is not leveled against him, the impugned order of appellate authority is bad in law and cannot be sustained on this ground and the same is quashed and set aside. Resultantly, the impugned communication with regard to inclusion of the name in the secret list of the persons of doubtful integrity is also quashed and set aside. The respondents are directed to proceed with the applicants prayer in Para 8(ii) of the Application in accordance with the applicable rules.
9. The application is accordingly allowed for the reasons stated above. No order as to cost.
(Sudhir Kumar) (Dr. Dharam Paul Sharma)
Member (A) Member (J)
/usha/