Central Administrative Tribunal - Delhi
Shri Badruddin vs Govt. Of Nct Of Delhi Through on 10 December, 2008
Central Administrative Tribunal Principal Bench OA No. 2640/2008 New Delhi, this the 10th day of December, 2008 Honble Mr. Justice V.K. Bali, Chairman Honble Mr. Shailendra Pandey, Member (A) Shri Badruddin S/o Shri Hazi Izharruddin R/o Village Salaheri, Tehsil Nuh District Mewat, Haryana. Applicant (By Advocate: Shri Shyam Babu) Versus Govt. of NCT of Delhi through: 1. Chief Secretary, Players Building, IP Estate, New Delhi. 2. The Commissioner of Police, Delhi Police Headquarters, I.P. Estate, New Delhi. 3. The Joint Commissioner of Police (Headquarters), Delhi, Police Headquarters, IP Estate, New Delhi. Respondents ORDER (ORAL) Justice V.K. Bali, Chairman:
Badruddin, Sub Inspector (Exe.) in Delhi Police, applicant herein, has filed this Original Application under Section 19 of the Administrative Tribunals Act, 1985, seeking to set aside order dated 29.05.2008, vide which his case for admission of his name to Promotion List F (Exe.) has been rejected.
2. Brief facts as projected in the Application would reveal that the applicant was given four censures in the year 2003 by Deputy Commissioner of Police (East District), Delhi, and in the year 2006 he was given yet another censure by Deputy Commissioner of Police, 7th Bn. DAP, New Delhi. The applicant was also imposed punishment of withholding of next increment temporarily for a period of one year, vide orders dated 23.06.2005 passed by Deputy Commissioner of Police (East District), Delhi. By the same order, period of suspension was decided as not spent on duty for all intents and purposes. On 15.09.2005, Additional Commissioner of Police, Delhi brought the name of the applicant on secret list of persons of doubtful integrity w.e.f. 23.06.2005 for a period of three years on the basis of allegation, as mentioned below:-
While posted at P.S. Mandawali and acting as a special staff of P.S. Mandawali went at the shop of Mohd. Shahid r/o H.No. 1216, Gali No. 48, Jafrabad, Delhi along with two informers Guddu & Pappu. They brought Mohd. Shahid and his employee Banwari Lal at P.S. Mandwali on 11.01.2003 and had beaten them mercicessly. They took Rs.10,000/- as a bribe and relieved them in midnight of 12.01.2003.
3. It appears that against order dated 23.06.2005 inflicting the applicant with punishment of withholding of next increment temporarily for one year, as mentioned above, applicant preferred an appeal, which was dismissed by Joint Commissioner of Police, New Delhi, vide order dated 30.01.2006. Being aggrieved against orders dated 23.06.2005, 15.09.2005 and 30.01.2006, the applicant filed OA No. 1826/2006 before this Tribunal, which was partly allowed on 25.09.2007. Operative part of the order reads thus:-
Since admittedly no prior approval was obtained as required by Rule 15 (2) of Delhi Police (Punishment & Appeal) Rules, 1980 the order of punishment dated 23.06.2005 and appellate order dated 30.01.2006 are quashed and set aside. However, liberty is granted to the respondents to start the proceedings from the stage of obtaining prior approval of the Additional Commissioner of Police.
4. The names of batch-mates of the applicant, in the meanwhile, were brought on Promotion List F (Exe.). However, in respect of the applicant, it was stated that he failed to achieve the benchmark due to his indifferent service record and, as such, was assessed as unfit. Being aggrieved by order dated 01.12.2007, the applicant made representation on 07.12.2007 to the Commissioner of Police, Delhi. In February, 2008, particulars for Promotion List F (Exe.) were called by Police Headquarters. The name of the applicant was at serial no. 36 of the list. In February, 2008 itself, the respondents quashed/set aside orders dated 23.06.2005 and 30.01.2006 on account of pronouncement of judgment dated 25.09.2007. On 29.04.2008, a review DPC met to consider the name of the applicant for Promotion List F (Exe.) w.e.f. 30.11.2007 but he was found unfit for the said promotion. On 29.05.2008, an order came to be issued on behalf of Commissioner of Police, Delhi stating that the representation submitted by the applicant has been considered and it has been found that he, along with his counterparts, was considered for Promotion List F (Exe.) w.e.f. 30.11.2007 and after evaluation of his service record, he was found unfit by the DPC for admission of his name to Promotion List F (Exe.) w.e.f. 30.11.2007 on account of his indifferent service record and also on account of existence of his name in the secret list of doubtful integrity. It is this order, as mentioned above, which is under challenge.
5. During the course of arguments, Shri Shyam Babu, counsel representing the applicant, vehemently contends that none of the censures, which may also be a punishment, given to the applicant in 2003 and 2006, was of corruption and moral turpitude, and that being so, promotion of the applicant could not be stalled or negated by taking into consideration such censures on the basis of which alone, it has been mentioned in the impugned order that the applicant has indifferent service record. It is also urged that if the indifferent service record, as mentioned in the impugned order, may not refer to the censures given to the applicant, there would be nothing adverse against him, which may debar him for promotion.
6. We have heard learned counsel for the applicant and with his assistance examined the records of the case.
7. The orders of punishment of five censures inflicted upon the applicant have been placed on record at Annexure C (Colly.). In the first censure dated 30.05.2003, the allegations against the applicant, while posted at P.S. Mandawali, were that in a criminal writ No. 1290/2001, a status report was filed by SHO/Mandawali on 07.01.2002 that chargesheet had been prepared in case FIR No. 388/2000 u/s 304-B/498-A IPC and the same was being sent to court for judicial verdict. He, being I.O. of the case, represented the matter in Delhi High Court. Under the circumstances, the case was required to be finalized and sent to the court for judicial verdict at the earliest but on checking the records, it was found that the case had been sent to court on 15.05.2002 and FSR had been sent on 22.06.2002. But actually the case had been filed in the court on 26.10.2002 after an inordinate delay of more than 5 months. He kept the file with him for no rhyme and reason, which speaks of callous attitude on his part. Honble Lieutenant Governor of Delhi was one of the party against whom contempt notice was issued by the Delhi High Court. However, contempt petition was dismissed by Delhi High Court on 05.02.2002 on the facts and circumstances of the case, but this led to lot of embarrassment to the department mainly due to his gross negligence. There did not appear to be any reason for such delay in a matter in which an undertaking had already been given in the High Court which was also in the knowledge of the applicant. The same was serious lapse on the part of the applicant. The show cause notice containing the allegations aforesaid was confirmed, vide order dated 30.05.2003. The allegations against the applicant contained in the second censure dated 27.05.2003 were that while posted at P.S. Mandawali, an enquiry into the case FIR No. 304/01 u/s 498-A, 304-B IPC was got conducted and the following lapse/lacunae were noticed on the part of the applicant:-
As per case diary No. 18-A, dated 09.02.2002 the challan was prepared u/s 498-A, 304-B IPC but the section 304-B IPC was deleted. The procedure adopted in deleting section 304-B IPC is not clear.
For challaning the case u/s 498-A IPC, there were statements of Ms. Anisha Chauhan (friend of the deceased) and Smt. Sudesh Sharma (mother of deceased). There was also statement of father of the deceased Sh. Vijay Kumar Sharma that the accused Navdeep used to make demands etc. These allegations should have been got corroborated and the accused person should have been arrested and challaned u/s 498-A IPC but accused was challaned without arrest. Even the chargesheet states that offence u/s 498-A IPC was made out on the basis of statement of Anisha Chauhan but there is not supporting evidence on file to arrest the accused. This appears to be contradictory.
The delay in seizing exhibits and sending them to C.F.S.L. for result has not been explained.
As the applicant did not give any reply to the aforesaid show cause notice, the same was confirmed vide order dated 27.05.2003. In the third show cause notice dated 26.08.2003, the allegations against the applicant were that he was found absent in the court of Sh. S.K. Sharma, M.M., Patiala House Court in case FIR No. 570/97 u/s 25/54/59, Arms Act, P.S. Lodhi Colony on 31.07.2002, which was serious lapse on his part. The applicant failed to submit any reply to the allegations made in the show cause notice aforesaid and the same was confirmed vide order dated 26.08.2003. In the fourth censure inflicted upon the applicant vide order dated 09.07.2003, the allegations were that on 17/18.01.2003 four persons named Laik Ahmed, Furkan Ali, Guddu and Nasib Singh met one Bijender Singh (an auto driver by profession) at A.V.B. Public School. They asked him to drop them at Khoda Colony. Being night, he refused for it they took him to P.S. Mandawali and talked with the applicant where he also threatened him and subjected to third degree method in his I.O. room and then taken to H.No. D-318, West Vinod Nagar, Delhi, where he was beaten by them and demanded Rs.20,000/- to set him free. All the four persons were well known to the applicant. Moreover, they used to come to P.S. Mandawali to meet him several times. Thus, the applicant also failed to take suitable action against them. When sympathizers Bijender Singh (auto driver) staged demonstration at P.S. Mandawali, he was got medically examined and a case FIR No. 25/2003 dated 18.01.2003 u/s 342/323/34 IPC was registered at P.S. Mandawali against the above four persons and, as such, the applicant also failed to bring the matter to the notice of SHO/Mandwali and ACP/Preet Vihar. Apart from that, he also left Bijender Singh at P.S. in custody without the knowledge of SHO or other responsible officer and left the P.S. to attend the briefing on Republic Day Parade-2003 without taking suitable action. When Bijender Singh was not involved in any criminal case/activity, as alleged by the persons against him, the applicant should have handed over him to his relatives instead of detaining him in the P.S. without any rhyme and reason, which was serious lapse on his part. This show cause notice was also confirmed, when the applicant failed to submit any reply. The applicant was inflicted with fifth punishment of censure by Deputy Commissioner of Police 7th Bn. DAP, New Delhi vide order dated 10.03.2006 on the allegations that the applicant, while posted in P.S. Vivek Vihar, was deputed for bus checking on 26.05.2003 at B-Block Market Booth vide DD No. 58-B PS, Vivek Vihar, but on checking by SHO Vivek Vihar he was not found on duty. Consequently he was marked absent from duty vide DD No. 67-B dated 26.05.2003 PS Vivek Vihar. The applicant unauthorizedly absented himself from duty and without any intimation/information to the department or competent authority. An absentee notice vide No.8018/SIP/AC/East dated 20.06.2003 was sent to his residential address with the direction to report for duty at once otherwise departmental action would be taken against him. If he was ill, he was to report to Chief Medical Officer, Aruna Asif Ali Hospital for second medical opinion, but he did not bother to do so. He reported back for duties vide DD No. 34-B dated 02.09.2003 PS Vivek Vihar after absenting himself for a period of 98 days, 22 hours and 15 minutes violating CCS (Leave) Rules, 1972 and S.O. No. 111 on the subject.
8. The applicant, along with others, was departmentally tried on the allegations that while he and his co-delinquent posted at P.S. Mandwali, acting as special staff of P.S. Mandwali went to the shop of Mohd. Shahid along with two informers named Guddu and Pappu. They brought Mohd. Shahid and his employee at P.S. Mandawali on 11.01.2003 and had beaten them mercilessly. They took Rs.10,000/- as bribe and relieved them in midnight of 12.01.2003. They had also not made any D.D. entry in the Roznamcha of PS Mandawali in this regard. This departmental enquiry, it appears, resulted into punishment which became subject matter of decision by this Tribunal in OA No. 1826/2006. The proceedings held against the applicant culminated into order of punishment which, it would be seen, was set aside for violation of provisions contained in Rule 15(2) of Delhi Police (Punishment & Appeal) Rules, 1980. Outcome of fresh proceedings, which have been initiated against the applicant pursuant to orders passed by this Tribunal in OA No. 1826/2006, is still awaited.
9. The impugned order (Annexure-B) dated 30.05.2008 reads as follows:-
Subject: Representation of SI(Exe.) Badruddin Khan. No. D/3024 regarding admission of name to Promotion list F (Executive).
Reference your office Memo 10004/Estt./7th Bn., dated 17.12.2007 on the subject cited above.
The application submitted by Sub-Inspector (Exe.) Badruddin, No. D/3024 has been considered in this Hdqrs. and it has been found that S.I. (Exe.) Badruddin, No. D/3024 alongwith his counterparts were considered for admission of his name on promotion List-`F (Exe.) w.e.f. 30.11.2007. After the evaluation of his service record he was assessed as UNFIT by the DPC for admission of his name to Promotion List-`F (Exe.) w.e.f. 30.11.2007 on account of indifferent service record and also existence of his name on Secret List of Doubtful Integrity by the DPC.
As per the DPC guidelines issued vide Circular No. 7931-8030/CB-I dated 7.2.2005, the DPC after making objective assessment of his suitability and taking into account of his service record during preceding 10 years in the rank, found that he has continued punishment in his credit. Besides, his name also exist in Secret List of doubtful integrity and as per provision contained in clause (iv) of the said circular the S.I. has been graded as UNFIT by the DPC for admission of his name to Promotion List `F (Exe.). Moreover, his case has also been re-considered by the review DPC held on 29.4.2008 and again assessed as UNFIT for admission of his name to Promotion List F (Exe.) w.e.f. 30.11.2007.
The applicant may please be informed accordingly.
Sd/-
(ASIF MOHD. ALI)ACP/CB FOR COMMISSIONER OF POLICE: DELHI
10. Perusal of the order, reproduced above, would manifest that the applicant has been overlooked in the matter of promotion for variety of reasons. His service record during preceding ten years was examined and it was found that he had continued punishments to his credit. His name also existed in the secret list of doubtful integrity. It has also been mentioned in the earlier part of the order that service record of the applicant is indifferent. In the first censure against the applicant dated 30.05.2003, the applicant has been held to be grossly negligent. In the censure order dated 09.07.2003, the allegation against the applicant, inter alia, was of demanding Rs.20,000/- from a person to set him free. Whereas three censures may not touch upon corruption or moral turpitude, but the two, as mentioned above, would show that the allegations against the applicant were of corruption also, which would also reflect moral turpitude. One censure, in any case, is with regard to corruption. That apart, as referred to above, sequel to departmental enquiry the applicant was punished on the charge of accepting bribe on the basis of which, his name was also brought on the secret list of doubtful integrity. Even though, the said order might have been set aside by this Tribunal in the OA filed by him, it cannot be forgotten that the order setting aside the order of punishment was on a technical flaw in conduct of proceedings and, therefore, the respondents had been given liberty to proceed against him. These proceedings, it is admitted during the course of arguments, are still pending. The order of punishment as such may not stand, but the allegations subject matter of enquiry do stand till such time the applicant may not be exonerated.
11. In the circumstances fully detailed above, we do not find any illegality or impropriety in the impugned orders declining promotion to the applicant at this stage.
12. Finding no merit in this Original Application, we dismiss the same in limine.
(Shailendra Pandey) (V.K. Bali)
Member (A) Chairman
/naresh/