Central Administrative Tribunal - Delhi
Hira Lal vs Govt. Of Nct Of Delhi & Others Through on 8 January, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, NEW DELHI O.A. No. 4411/2012 With OA No.47/2013 MA No.34/2013 Order Reserved on 27.09.2013. Order pronounced on:08.01.2014. HONBLE MR. V. AJAY KUMAR, MEMBER (J) HONBLE MR. V. N. GAUR, MEMBER (A) O.A. No. 4411/2012 Hira Lal, S/o Late Sh. Jasram R/o House No.27, 2nd Floor Block C-3, Sector -11 Rohini, Delhi-85 -Applicant (By Advocate : Shri M.K. Bhardwaj) Versus Govt. of NCT of Delhi & Others through : 1. The Commissioner PHQ, IP Estate New Delhi 2. The Additional Commissioner of Police Spl. Branch Police Bhawan, Asaf Ali Road, Delhi. 3. Additional Dy. Commissioner of Police, (GA) Police Headquarter I.P. Estate, Delhi. Respondents. (By Advocates : Mrs. Sumedha Sharma and Shri Vijay Pandita) OA No.47/2013 1. Head Constable Jai Kishan, No.121, S/o SH. Ganpat, R/o Barrack No.1, 1st Floor, P.S. Delhi Cantt, Delhi-10. 2. Constable Hari Ram, No.303/SB, S/o Sh. Molabee Ram, R/o C-39, Qutub Vihar, Phase-1, Near Sector-19, Dwarka, New Delhi. -Applicants (By Advocate : Shri M.K. Bhardwaj) Versus Commissioner of Police & Ors. Through: 1. The Commissioner of Police, PHQ, I.P. Estate, New Delhi. 2. The Additional Commissioner of Police, Spl. Branch, Police Bhawan, Asaf Ali Road, Delhi. 3. Additional Dy. Commissioner of Police (GA), Police Headquarter, I.P. Estate, Delhi. -Respondents (By Advocates : Mrs. Sumedha Sharma and Shri Vijay Pandita) O R D E R Mr. V.N. Gaur, Member (A):
As a common question of law has been raised by the applicants in these two OAs, they are disposed of through this common order.
2. MA-34/2013 filed by the applicants in OA-47/2013 for joining together in single application under Rule 4 (5) (a) of the Central Administrative Tribunal (Procedure) Rules, 1987 is allowed in the interest of justice and to avoid multiplicity of litigation.
3. The applicants have filed the OAs against the orders passed by the Disciplinary Authority (DA), awarding the punishment of withholding of next one increment of each applicant without cumulative effect for a period of one year. The representations submitted by the applicants have also been rejected by the Appellate Authority (AA).
4. The applicants had been charged with the act of gross negligence, carelessness, shirk-ness and unprofessional and a common departmental enquiry was instituted against them. It had been alleged that the applicants in the two OAs, namely Shri HC Jai Kishan and Constable Hari Ram, and Inspector Hira Lal, who was the SHO of Inderpuri Police Station, connived to allow illegal sale of liquor by one Darshan Singh, who was also a bad character (BC) of Police Station, Inderpuri. Inspector Rajesh Dogra of Vigilance Branch on receipt of anonymous complaint visited the place of occurrence, i.e., residence of Darshan Singh on 30.03.2009 for inquiry regarding the complaint of illegal sale of illicit liquor and drugs in A Block, Inder Puri, round the clock. He was accompanied by two other persons. When Inspector (Vigilance) Dogra asked the private person to take photographs of the empty and filled quarters/half bottles of liquor lying in the house of Darshan Singh he was physically assaulted upon. Inspector Dogra sustained injuries and he had to go to the hospital. On the basis of the PCR call received from him the PCR staff and local staff including the SHO reached the spot and Darshan Singh was handed over to the police. Subsequently, a FIR was filed on 30.03.2009 under Section 186/353/332/34 IPC and 61/1/14 Excise Act on the statement of Inspector Dogra. It was on the basis of this incident that the applicants in these OAs were charged as mentioned above. After the common departmental inquiry the DA passed the orders dated 27.04.2012, imposing the penalty under Delhi Police (Punishment and Appeal) Rules, 1980.
5. The learned counsel for the applicants in his submission challenged the orders passed by the AA and DA on the ground that the finding of the Inquiry Officer (IO) was not based on any direct evidence and was based on only certain assumptions and presumptions. Nowhere in the inquiry there was any evidence in support of the charge that the applicants had colluded to allow Darshan Singh (BC) to carry on with his activity to sale liquor illegally. He pointed out that the applicants by giving specific dates on the basis of the entries made in general diary have shown that they took all possible steps to ensure that no illicit liquor was sold in the area. Not only they had arrested Darshan Singh and his wife and registered FIR in the past but many other cases were also registered and action taken. He also submitted that the defence witnesses were not cross-examined by the Prosecuting Officer (PO) and as such whatever they have stated should have been taken as true. He further pointed out that the whole disciplinary proceedings instituted against the applicants was liable to be quashed on the ground that it was based on an anonymous complaint and as per the Central Vigilance Commissions (CVC) instructions any such complaint has to be ignored and if at all an action is to be initiated prior concurrence of the CVC is required. In this case the respondents did not take prior approval of the CVC before starting the disciplinary proceedings. Pointing out some more infirmities in the disciplinary proceedings, the learned counsel stated that the applicants were not provided with the copy of the preliminary enquiry (PE) that was conducted. The persons who had accompanied Inspector Dogra were not listed as witnesses and, therefore, could not be examined. The whole proceeding was based on suspicion and there was no hard evidence to prove the guilt of the applicants. The learned counsel referred to the judgment of this Tribunal in OA-3203/2011 Jagdish Yadav v. Govt. of NCT of Delhi & Anr., decided on 20.01.2012, where it was observed:
However, in the present case, we find that the very accused who was caught carrying illicit liquor, had also been booked earlier, and the applicant had booked so many persons under Excise Act, to show that the allegations made against him were not correct, for which it was alleged that the applicant had failed to take adequate steps to stop sale of illicit liquor within the jurisdiction of his police station. Further no police officer can be omnipresent. If another police officer may have information of a bootlegger carrying illicit liquor, which information may not be with the applicant, it cannot be said for that reason alone that the applicant lacked supervision in his area for checking sale of illicit liquor. The learned counsel further referred to OA-4212/2010 where the explanations furnished by the applicants were not taken into consideration by the AA. This Tribunal set aside the orders passed by the AA and DA. The learned counsel also relied on the decision in Gabrial v. State of Madras, the Honble Madras High Court had set out the required steps to be taken in an enquiry, which according to the learned counsel in this case had not been complied with. He also referred to the decision of the Honble Supreme Court in Kannia Lal v. State, AIR 1959 Raj, L.W. 392, where the Honble Supreme Court had taken a view that arbitrary or capricious or manifestly unfair decisions cannot secure immunity from judicial review. Submitting that the DA did not have good and sufficient reasons for imposing penalty as he did, the learned counsel referred to the Honble Supreme Court judgment in Union of India v. J. Ahmed, AIR 1979 SC 1022, wherein it has been discussed as to what would constitute misconduct as attributable to the Government servant. Srinivasa v. State, AIR 1961 MLJ 211 was also relied on in support of the argument that the penalty imposed on the applicants cannot be awarded on the basis of mere suspicion. On the role and conduct of the IO, the learned counsel relied on S. Krishnan Nair v. Divisional Superintendent, Southern Railway, 1973 (2) SLR 353. He also quoted Union of India v. Gyan Chand, (2009) 5 SCC 86 in support of his argument that the applicants could not have been punished without any justification and on vague allegations.
6. The learned counsel for the respondents in his submission stated that the applicants have been charged with gross negligence, carelessness, shirkness and unprofessional on the ground that in their jurisdiction or beat area some bad characters were found selling illicit liquor and facilitating its sale by providing water and glasses for drinking with liquor in a room. This charge has been proved by the IO in his report and the applicants have not made any allegation that the IO was prejudiced. The subsequent action by the DA has been taken after following the prescribed procedure wherein the applicants have been given full opportunity to defend themselves. The Inspector Dogra had visited the area on the basis of an anonymous complaint to get it checked by surprise. Under these circumstances, the Inspector, Dogra could not have associated the local Thana officials as suggested by the learned counsel for the applicants. The respondents have also stated in their counter reply that the vigilance enquiry report submitted by the Inspector Dogra was not supplied to the applicants being a confidential document. It has also been admitted that the applicants had taken action against the bootleggers in the past but they failed in controlling crime, as was evident from what happened on the night of 30.03.2009. He denied that the action against the applicant was based on presumptions as the DA has taken action on the basis of the report of the IO, proving the charges against the applicants. It has been further submitted that while it was true that the CVC could not be consulted before initiation of the disciplinary enquiry (DE), later on the Vigilance Branch (PHQ) had written a letter to the CVC on 26.07.2011 informing the departmental action initiated against the applicants based on pseudonymous/anonymous complaint. With regard to the submission by the applicants that negatives of the photographs taken by the photographer Ajay Gupta were not supplied to them. It has been stated that the photographs were taken by the digital camera and hence there was no negative. The learned counsel for the respondents was of the view that the judicial verdicts relied upon by the applicants in OA-3203/2011 and OA-4212/2010 were not relevant as the facts of these cases were not similar. The other cases referred to by the applicants were also not relevant because the punishment was not awarded on the basis of mere suspicion or arbitrary or based on vague allegation.
7. We have gone through the material placed on record and carefully considered the submissions made by the learned counsels from both the sides. The DA in its order (impugned) has recorded as follows:
Vigilance inquiry proved that illegal liquor was being sold in A-Block of Inder Puri without any fear by above Darshan Singh, who was a BC of PS Inder Puri. It shows connivance of Div. staff and SHO failed in preventing crime.
Thus the charge proved against the applicants is taken as connivance of Div. staff and SHO and failure in preventing the crime. In the entire record of the disciplinary proceedings which has been placed before us nowhere there is any mention of connivance of the applicants with the offenders. The enquiry proceedings have focused only on the fact whether the crime of bootlegging had taken place or no. Inspector Dogra had collected six quarter bottles of illicit liquor and few empty glasses. No money was recovered from the scene of crime that could have proved the sale of liquor. It is also not clear from the evidence available in the file whether the photographs taken by the Inspector, Dogra also showed some persons drinking the liquor at the place of occurrence. Thus there could be a question mark whether a crime, as reported, took place or not. Even if we do not go into that question, and take that as proven, we are unable to see how that can be linked to the applicants in these cases. One of the applicants has claimed that he was on operator duty with SHO on that date but the same has been contradicted in the evidence. Even then it cannot be said that any crime happening within the jurisdiction of the SHO or beat areas of other applicants would necessarily mean that the same has happened with their knowledge and connivance. In this regard we are entirely in agreement with the observations made by a coordinate Bench of this Tribunal in OA-3203/2011 which has been quoted above. On the other hand, the applicants have shown that in the past they have taken several steps to check the crime in their area, lodged FIRs and arrested a number of persons and, therefore, it cannot be said that the applicants have been lacking in taking action. It is worth noting that Inspector Dogra in his cross-examination during the DE had admitted that in the anonymous complaint on the basis of which he had gone for verification, there was no specific name of any local police officers. Thus there is no evidence on record that would show any connivance of the applicants in the alleged crime of bootlegging
8. The procedure followed by the Inspector from the Vigilance Branch in this case is also quite curious. The purpose of verification conducted by him is not clear. If the intention was to prove connivance of local staff, there should have been efforts to link the crime happening in that area with the staff of that police station by laying a trap. However, there was no such effort and the whole operation was apparently intended to prove that a crime was taking place. If there was any input that a crime was taking place and there was an intention to prevent it, the same should have been sent to the concerned police station for taking action.
9. We would also like to address the issue of taking action against the applicants on the basis of anonymous complaint. The learned counsel for the applicant has submitted that not taking CVCs prior approval for starting the DE against the applicants vitiated the entire proceedings. The respondents in their counter affidavit have devoted considerable space dwelling on this issue and pleading that even though prior approval of CVC was not taken, information was submitted to the CVC subsequently. In our view the question of taking CVCs approval would arise only when the action is taken against an official on the basis of an anonymous complaint against that official. In these cases the anonymous complaint was more in the nature of information about a crime being committed in certain areas. It did not mention the name of any police officer or made any allegation of connivance. Such anonymous complaint cannot be taken as anonymous complaint against a police officer for which prior approval of the CVC would be required for initiating DE. The Vigilance Branch acting on the anonymous complaint sent an officer for verification and found that the crime was being committed. From then onwards, the fact that a crime was being committed in the jurisdiction of a police station or the beat area of certain police officers has become the ground for initiating DE. The question of obtaining CVCs prior approval when the DE itself is not based on the anonymous complaint, therefore, was not relevant in this case.
10. Taking into account the entire conspectus of the case and for the reasons mentioned above including the view taken by this Tribunal in OA-3203/2011, we quash and set aside the punishment orders dated 27.04.2012 and the orders of the AA dated 22.10.2012. The applicants shall be entitled to all consequential benefits, including arrears of pay. Both the OAs are accordingly allowed. No costs.
10. Let a copy of this order be also kept in OA-47/2013.
(V.N. Gaur) (V. Ajay Kumar) Member (A) Member (J) San.