Central Administrative Tribunal - Delhi
Insp. C. K. Sharma vs Union Of India Through on 12 April, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI Original Application No.1968/2008 Misc. Application No.1837/2009 This the 12th day of April, 2010 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE SHRI L. K. JOSHI, VICE-CHAIRMAN (A) Insp. C. K. Sharma, No. D-I/768, SI-2, Traffic Police Lines, Teen Murti, New Delhi. Applicant ( By Shri Arun Bhardwaj, Advocate ) Versus 1. Union of India through Commissioner of Police, Police Headquarters, IP Estate, New Delhi. 2. Joint Commissioner of Police, Southern Range, Police Headquarters, New Delhi. 3. Deputy Commissioner of Police, South District, New Delhi. Respondents ( By Shri Ram Kawar, Advocate ) O R D E R Justice V. K. Bali, Chairman:
MA No.1837/2009 For the reasons mentioned in the misc. application, we recall our order dated 21.8.2009 dismissing OA No.1968/2009 in default. The OA is restored to its original number and with consent of the parties the matter is taken on hand for hearing.
2. C. K. Sharma, an Inspector in Delhi Police, aggrieved by the order dated 17.10.2007 passed by the Deputy Commissioner of Police, South District inflicting him with the punishment of censure, as also order dated 28.2.2008, vide which his appeal carried against the order aforesaid was dismissed by Joint Commissioner of Police, Southern Range, has filed this Original Application under Section 19 of the Administrative Tribunals Act, 1985 calling in question the said orders.
3. A show cause for censure was issued to the applicant on 15.3.2007 alleging that an enquiry was conducted by Insp. Harish Kumar Sharma of Anti Corruption Branch, with regard to complaint of one Kiran Singh Tanwar regarding illegal construction/encroachment made by one Attar Singh and Nikhlesh Sharma @ Tara on plot No.154-155 (presently bearing No.D-5/195) near Para Medical Centre, Gali No.5, Chattarpur Pahari, New Delhi, between January and March 2006 on a piece of land which belonged to Gram Panchayat, Chattarpur/ Government land. The enquiry conducted revealed that illegal construction/encroachment had been carried out by Attar Singh on property No. D-5/195, Chattarpur Pahari. It was alleged that complainant Kiran Singh Tanwar immediately brought this matter to the notice of DC (South and SHO, PS Mehrauli) vide his telegram dated 22.1.2006 and complaint dated 30.1.2006, but no action was taken against the encroacher till 31.3.2006, and that the construction went on between 22.1.2006 and 31.3.2006 without any hindrance. On 31.3.2006, i.e., two months after the unauthorized construction was reported by the complainant, a team of revenue officials with the assistance of police demolished part of the unauthorized construction at the property in question. It was stated that it was clear that the revenue staff of SD and SHO PS Mehrauli did not take prompt action against the illegal construction/encroachment and also left huge portion to be demolished. During enquiry it also came on record that BDO/SD wrote two letters to SHO PS Mehrauli dated 3.2.2006 and 20.3.2006 on the illegal encroachment on Gram Sabha land in village Chattarpur Pahari, and for registration of case u/s 441/447 IPC, but no case was registered by local police on the pretext that BDO had not mentioned the exact plot number where encroachment was being carried out, though there was an easy source to locate the property if the local police wanted to take action against the encroachers. It was mentioned that the complainant could have been contacted who was well acquainted with the location of the property, but sufficient time was provided to the encroachers to raise the unauthorized construction, and two months time went by in merely making correspondence with each other, which would clearly indicate that the encroachment was brought to the notice of concerned officials but no action was taken. The applicant who was working as SHO/Mehrauli at the relevant time is alleged to have taken the matter in a very casual manner.
4. The applicant did not respond to the show cause notice, for which reason as well it appears that the show cause notice was confirmed and punishment of censure was inflicted. Constrained thus, the applicant filed an appeal against the order aforesaid, wherein he inter alia pleaded that he had received a letter from BDO/South on 6.2.2006 for initiating action u/s 441/447 IPC, and to lodge FIR against Attar Singh and Tara. He marked the letter to SI Rajesh Brar, Division Officer, for necessary action, who made enquiries at Chattarpur Pahari near Para Medical Institute to locate Khasri No.110 and the exact location of the plot, and found that there was no new basement under construction near the above institute or its nearby area in street no.D-5, as mentioned by the BDO in his letter. He further pleaded that in spite of his best efforts as well as enquiries from the residents of street no. D-5, he was not able to identify the Khasra No.110 and the plot. He went to BDO office personally and met Panchayat Secretary, Niranjan Singh and BDO staff, but could not get the exact information required for registration of the case. On 31.3.2006, the BDO staff came to the police station and met the applicant, who along with other staff of the PS went to the area of village Chattarpur Pahari, where he located the plot and the BDO staff demolished the same and it was found that the basement was constructed about 15 to 20 years ago. SI Rajesh Brar made further enquiries from the area and also met Smt. Beermati R/O D-5/171 from whom he came to know that her brother Deewan Singh had purchased the plot which had been demolished. On 7.7.2006, Inspector Harish Kumar of Anti Corruption Branch along with SI Rajesh Brar visited the spot for making further enquiries, where they met Dr. S. K. Singhal, Director, Institute of Paramedical Sciences at plot No.154-155, whereas the present number of the plot was found to be D-5/196-197, Chattarpur Pahari. They came to know that this plot was located on old patta/plot no. 154-155, while the new number was D-5/196-197 of Khasra no.106. The adjoining plot of the institute was found to be D-5/195 of Khasra no.106 and not Khasra no.110, as claimed in the letter by BDO/South. On further enquiries, it was revealed that the basement was constructed well before 1993 and not in the month of January, 2006, as claimed by Niranjan Singh, Panchayat Secretary, and the information supplied by the BDO as well as Panchayat Secretary was found incorrect as well as false. SI Rajesh Brar along with beat staff conducted enquiries with regard to the plots in Chattarpur Pahari and found that 800 plots were allotted to the weaker section of Chattarpur village under 20-Point Programme in 1985 and patta certificates were issued to them, subject to the provisions of the Delhi Land Reforms Act and the Delhi Panchayat Raj Act, 1954. It also revealed that most of the original allottees had sold their plots and thus violated the conditions of the patta certificates issued to them in 1985 while handing over the possession of the said plots. Since Gram Panchayat was dissolved in the year 1989, the BDO was the only authority to take necessary action. It was then stated that Kiran Singh Tanwar, the complainant, was having a bad reputation in society and was a habitual complainant. He was stated to be a BC facing externment proceedings as also an established criminal and extortionist/land grabber. The applicant further stated that in this case as well his design was to extort money from Attar Singh and Nikhlesh Sharma @ Tara, and when he could not realize the same, he moved the complaint. The applicant wondered if the punishment could be inflicted upon him on the complaint of such person which would have discouraging effects upon the minds of police personnel. He stated that he has unblemished service record of more than 27 years of service and during his entire career, he has earned many appreciations from superior officers from time to time, and that the punishment of censure is likely to jeopardize his service career.
5. The appellate authority, it appears, took into consideration some of the pleas raised by the applicant, and not all. In particular, the plea raised by the applicant that there was no construction going on and the basement on the plot was constructed several years ago, was not even taken into consideration. With regard to the pleas taken note of, the appellate authority observed as follows:
The pleas of the appellant are not convincing. The appellant cannot escape from his responsibility being SHO. If the SI was not able to identify Khasra No.110 and the plot, the appellant himself should havemade enquiries, as the information given by the BDO cannot be doubted. Moreover, no case had been registered by the local police on the pretext that BDO has not mentioned an easy source to locate the property, if the local police wanted to take action against the encroachers, they could have contacted the complainant who was well acquainted with the location of the property. But sufficient time was provided to the encroacher of property to raise his unauthorized construction and passed two months time merely in making correspondence with each other. This clearly indicates that this unauthorized encroachment was brought to the notice of concerned officials but no action was taken. An enquiry into the matter had also been conducted which revealed that illegal construction/encroachment has been carried out by Shri Attar Singh on property No. D-5/195, Chattarpur Pahari. The complainant Kiran Singh Tanwar immediately brought this matter to the notice of SHO/Mehrauli vide his telegram dated 22.1.06 and complaint dated 30.1.06, but no action was taken against the cncroacher till 31.3.06. The appellant the then SHO/Mehrauli had not registered a case u/s 441/447 IPC which should have been registered as soon as they got the exact plot where unauthorized construction/ encroachment was being carried out. The appellant has been found negligent in this case for which the punishment awarded by the disciplinary authority is not excessive and the same is maintained. The appeal is rejected.
6. When this matter came up for hearing before us on 8.12.2009, we directed the respondents to produce for our perusal the complaint and the telegram sent by Kiran Singh Tanwar. On 12.1.2010 we were informed that the complaint has been placed on records. We thus recorded the order that even though the complaint had been brought on record, respondents had not produced the telegram so far. By now the telegram has been placed on records. The respondents, it appears, have not placed on records, despite orders by this Tribunal, the complaint dated 30.1.2006 that made by complainant Kiran Singh Twnwar. What instead has been placed on records is one undated complaint which appears to have been received by the concerned department on 23.8.2006, wherein reference of the earlier complaint has been made. It is mentioned in the complaint aforesaid that a letter dated 20.3.2006 was sent to SHO/Mehrauli by the concerned BDO requesting therein for registration of FIR against the illegal encroachment, and that a similar letter dated 3.2.2006 was also sent to SHO/Mehrauli by concerned BDO for registration of FIR, but all in vain, and no FIR had been registered. It is then stated that illegal construction was still going on at plot No.154-155 near Para Medical Centre, Gali no. D-5, Chattarpur Pahari, under supervision of Attar singh and Nikhlesh Sharma @ Tara, known BC of the area being hand-in-glove with local police and BDO staff. The grouse in the complaint aforesaid rather appears to be that despite the complaint having been sent earlier, no action had been taken. Insofar as, the telegram is concerned, which has been placed on records, it is mentioned therein that Some people are encroaching on the land of Gram Panchayat in the night. In that matter BDO and SHO PS Mehrauli giving him the support to construct on plot bearing No.154-155 Gali No.D-5 Chattarpur Pahari where open space is lying. Mr. Attar Singh S/o Lakh Ram is doing work and encroachment on land of Gram Sabha. I have made a call on 100 no. but no PCR van came on the spot to stop the work on this Gram Sabha land. Please take the legal action against above said persons. The allegation in the complaint is of encroachment of Gram Panchayat land. There is mention of construction as well. The respondents have also placed on records letter dated 3.2.2006 addressed to SHO/Mehrauli by BDO (South), wherein it is mentioned that as per records of the Panchayat Secretary (Chattarpur) Attar Singh and Tara had jointly encroached/ transgressed upon Gaon Sabha land of village Chattarpur in the manner specified below:
S. No. Name of the encroacher Kh.
No. Nature of encroachment
1. Sh. Attar singh S/o Sh. Lekha Ram r/o Fatehpur Beri, New Delhi 110 By way of constructing a basement in G.No.5 at Chattarpur Pahari (Near Para Medical Institute)
2. Sh.Tara 110 -do-
SHO/Mehrauli has been requested to take action against them u/s 441/447 IPC and send copy of the FIR lodged along with action taken report to office of BDI for taking further necessary action. The respondents have also placed on records a letter dated 20.3.2006 addressed to SHO/Mehrauli by BDO (South), wherein it is mentioned that the complaint dated 3.2.2006 had been returned back in original, and that the office of BDO had sent the said complaint for registration of FIR against the encroachers on Gaon Sabha Land but no FIR had been registered against them, and instead an advice/opinion had been given for location of the land and taking action as per law. It is mentioned that the office of BDO had not sought any opinion from the police department as to what action should be taken as per law. However, it was decided that FIR should be registered against the encroachers without any further delay. The complaint dated 30.1.2006 referred to in the show cause notice has not been placed on records. From the available records, one thing that pertinently comes to notice is that in the telegram the allegations are with regard to encroachment and construction on open space. What construction was being made is not mentioned. Insofar as, the first letter written to the SHO/Mehrauli by the BDO is concerned, the mention of construction is of only basement. We have also been supplied, during the course of arguments, the report of Anti Corruption Bureau, perusal whereof would show that the present number of plot No.154-155 is D-5/195. It was originally allotted to one Mehar Chand s/O Hari Chand R/o Village Chattarpur under 20-Point Programme by Pradhan, Gram Sabha, Chattarpur on 22.3.1985. He sold this plot of land to Attar Singh in the year 1992 (with basement constructed thereon). In the report, this transaction has been opined to be illegal. It is then stated that Attar Singh started illegal construction on 22.1.2006 and constructed two rooms, a bathroom, a kitchen and a toilet on the ground floor. On 8.3.2006, Attar Singh had sold this plot to Deewan Singh S/O Ram Phal. It is also mentioned in the report that plots at Chattarpur Pahari were allotted to weaker section of the residents of village Chattarpur in the year 1985 under 20-Point Programme, and that most of the plots had been sold by the original allottees, as per the survey conducted by DC Office. The Gram Sabha/Panchayats were dissolved in 1989 and since then, concerned Dy. Commissioners are the custodian of Gram Sabha Land, who initiate action against the illegal construction/encroachment on Gram Sabha land on the report of Panchayat Secretary/Patwari and the complaints received. It is further mentioned that Niranjan Singh, Panchayat Secretary, intentionally furnished incorrect/incomplete information to BDO vide his report dated 24.1.2006, in spite of having visited the village, and that it was surprising that on the basis of this report BDO Shri A. K. Sharma wrote two letters to SHO/Mehrauli for registration of case u/s 441/447 IPC without ensuring that the property in question was fully identified in the complaint. It is further mentioned that it had been clearly established that the Panchayat Secretary submitted an incomplete/incorrect report to BDO who sent a complaint to SHO/Mehrauli along with a report of Panchayat Secretary. However, no case was registered by the local police. It is further mentioned that enquiries had revealed that Kiran Singh Tanwar was having a bad reputation in the society and was a habitual complainant, and that he was moving complaints against police officials of PS Mehrauli because recently he was arrested in an FIR u/s 341/342/448/506/509 IPC, and in another FIR u/s 147/148/149/380 IPC, PS Mehrauli being investigated by the DIU/South, he was on anticipatory bail. He was also arrested by SI Rajesh Brar u/s 107/151 Cr.PC on 2.6.2005. On that day he was distributing hand bills to disturb the peace and harmony of the local residents of Mehrauli. Insofar as the question of incorrect address is concerned, the enquiry officer observed that both the agencies took two months to locate the plot where unauthorized construction/encroachment was going on. The complainant had also informed about this encroachment on 22.1.2006 to PCR on which the local police had visited the site but neither the construction was stopped, nor any action was taken against the encroachers. The report then goes on to say that the property could be easily located. The BDO has been criticized for not taking any action against the Panchayat Secretary who submitted an incomplete report to his office. It is also mentioned that no evidence came to light to establish that the officials had taken money to allow unauthorized encroachment/construction.
7. We have heard the learned counsel representing the parties and with their assistance examined the records of the case.
8. The facts, as fully detailed above, culled out from the pleadings and accompanying documents, would reveal that 800 plots owned by Gram Sabha were allotted to persons of weaker section of society under 20-Point Programme in 1985. Insofar as, the plot in question is concerned, the same was allotted to one Mehar Chand s/o Hari Chand under 20-Point Programme on 22.3.1985. He sold the said plot to Attar Singh in the year 1992, and as per the report of Anti Corruption Branch, it was sold with the basement already constructed. On 8.3.2006, Attar Singh sold this plot to Deewan Singh s/o Ram Phal. On the day when Kiran Singh Tanwar sent telegram dated 22.1.2006 and made the complaint on 30.1.2006, the plot could well be said to be owned by Attar Singh. As to whether Mehar Chand, the original allottee under the 20-Point Programme, could sell the plot or not is not a question that would be relevant for deciding the present Application. The factual position as obtainable on the day when the telegram/complaint was sent is that Attar Singh was the owner of the plot and was also in possession thereof, having purchased it from Mehar Chand. It is not understandable as to how Kiran Singh Tanwar could be an aggrieved party in the matter of encroachment or construction on the plot in which he had no right, title or interest. We are conscious that we are not dealing with the authenticity of allegations made in the telegram and complaint sent by Tanwar, as this aspect of the case has to be taken care of by the concerned court, where, if at all, any case may be pending. The factual position narrated above is only by way of background of the case. We may also mention at this stage that it is the positive case of the applicant that Tanwar himself was an extortionist and a known BC of the area having number of criminal cases against him earlier to the incident. This assertion of the applicant has been confirmed by the enquiry conducted by the enquiry officer who gave his report, on the basis of which only the applicant was issued the show cause notice for inflicting the punishment of censure upon him. Insofar as, the complaint dated 30.1.2006 sent by Tanwar is concerned, the same has not been placed on records despite our directions on that behalf. The respondents have indeed placed on records telegram dated 22.1.2006 but not the complaint dated 30.1.2006. The correspondence that ensued thereafter, of course, has been placed on records, but the case proceeds against the applicant for not taking appropriate action based upon telegram dated 22.1.2006 as well as the complaint dated 30.1.2006. Insofar as, the telegram is concerned, which we have reproduced above in the earlier part of the judgment, it is stated that some people were encroaching on the land of Gram Panchayat in the night. The plot on which encroachment is alleged, is plot No.154-155 Gali No.D-5, Chattarpur Pahari, where open space was there. Name of Attar Singh is mentioned as the person who was doing unauthorized construction on the land in question. For non-production of the complaint dated 30.1.2006, despite orders passed by this Tribunal, an adverse inference needs to be drawn against the respondents. That apart, it can reasonably be presumed that the complaint could not be at variance with the contents of the telegram. What thus would appear is that it was a case of vacant land where there was encroachment and construction was going on. The property was identified as plot No.154-155 Gali No.D-5. By the time the applicant was issued the show cause notice, it was admitted at all ends that it was not an open space; rather a basement had since already been constructed thereon, and further that the new number of the plot was D-5/196-197 of Khasra No.106 and not Khasra No.110, which may have been mentioned in the subsequent complaint of Kiran Singh Tanwar or the letters that were written by the BDO to SHO/Mehrauli.
9. In the light of facts as mentioned above, there appears to be a plausible explanation given by the applicant that SI Rajesh Brar deputed by him was unable to locate the plot in question. If the officer deputed at the spot was to find out that in the property mentioned in the complaint no construction was going on, it was reasonable for him not to take any action, like registration of FIR against the persons mentioned in the complaint, till such time the property was properly identified and the same was found to have been encroached upon, where construction may also be going on. Insofar as, telegram dated 22.1.2006 is concerned, the same, as mentioned above, is with regard to a vacant plot wherein encroachment had been done and construction was going on. The complaint dated 30.1.2006, which has not been produced, it can be presumed, would be in tune with the allegations made in the telegram. If no construction was going on in any vacant plot, and in fact, the construction was on a plot where basement had already been there, the applicant and his staff cannot be faulted for not taking any action at that stage. In the letter dated 3.2.2006 addressed to SHO/Mehrauli by the BDO (South), the nature of encroachment has been stated as by way of construction of basement in Gali No.5. The proved fact, as mentioned above, is that construction, if at all, was done on the ground floor, i.e., above the basement. How the applicant and his subordinate staff could possibly locate the plot allegedly encroached upon wherein illegal construction was going on, when not only the number of the plot and Khasra number was wrong, but the information contained in the complaint as also in the letter dated 3.2.2006, adverted to above, was also wrong. At this stage, we may refer to some of the relevant contents of the enquiry report based upon which the applicant was issued the show cause notice. It is mentioned therein that the BDO Shri A. K. Sharma wrote two letters to SHO, Mehrauli for registration of case u/s 441/447 IPC without ensuring that the property in question had been fully identified in the complaint. It is also mentioned that it had been clearly established that Panchayat Secretary submitted an incomplete/incorrect report to BDO who sent a complaint to SHO, Mehrauli along with a report of Panchayat Secretary. These were some of the relevant factors which ought to have been taken into consideration by concerned authorities. The applicant, it appears, has been held guilty for the only reason that even though, the property may not have been properly identified in the telegram or the complaint or the letter written by the BDO, he could have easily ascertained the same as he could contact the complainant in that regard. Such a finding may be correct, but at the same time, there could be reason for the applicant or his subordinate staff not to contact the complainant. If the applicant or his subordinates were not to find any construction going on in any vacant plot in Chattarpur Pahari area, they could well treat the telegram and the complaint to be false. What in ultimate analysis has been found by the enquiry officer is that construction was of two rooms, a bathroom, a kitchen and a toilet on the ground floor. This was not the case either in the complaint or the telegram or even in the letter written by the BDO. Whereas, the complainant would make it a case of illegal construction on a vacant plot, the BDO would state that illegal construction was of the basement. If these facts were not found to be correct at all by the applicant or his subordinate staff, they could not be held guilty simply for the reason that they did not contact the complainant. Of course, the antecedents of the complainant and his involvement in number of criminal cases, as also he having no interest in the property in question, would not be of much consequence, as the police while investigating a case is still required to contact the complainant, but in the present case, as mentioned above, there were sufficient reasons for the applicant and his subordinate staff to treat the contents of the telegram and complaint to be false. These are some salient features of the case, which had bearing upon the controversy in issue, and which needed to be gone into by concerned authorities. We would not like to substitute the opinion of the authorities by our own opinion at this stage. Since these aspects have not been taken into consideration by the concerned authorities, we would deem it more appropriate that the matter is remitted to the authorities for deciding it afresh. Normally, we would have set aside only the appellate order, but in the present case, even the order passed by the disciplinary authority needs to be set aside for the reason that while holding the applicant guilty, the disciplinary authority mentioned that the Commissioner of Police had already decided to censure the applicant and, therefore, he had no choice but for to confirm the notice. We may reproduce the relevant portion of the order, thus:
Since the C.P. Delhi has already decided to censure the conduct of the Inspector, therefore, I have no option, but to confirm the Notice. The show cause notice for censure is confirmed and the conduct of Inspector C.K.Sharma, No.D-I/768 is hereby censured. This is not a valid ground at all to confirm the notice. It rather shows that the disciplinary authority had no choice but for to confirm the notice since the Commissioner had already decided to censure the conduct of the applicant. It is no doubt true that the applicant had not given any reply to the show cause notice, but the notice could not have been confirmed on the ground that the disciplinary authority had no choice in the matter and had to toe the line of his superiors in service.
10. Despite the fact that censure may appear to be a minor punishment prescribed under rules, it is often seen that the same turns out as stumbling block in a big way in the matter of promotion of an officer in Delhi Police. Even though, there are instructions to state that unless the censures may be on the allegations of corruption and moral turpitude, the same may not be taken into consideration in case of promotion, but the law that has evolved is that overall service record of an officer is relevant for the purpose of his promotion. That being so, while proposing to visit a police officer with the penalty of censure, the concerned authority is to give serious thought.
11. In view of the discussion made above, impugned orders dated 17.10.2007 and 28.2.2008 passed by the disciplinary and the appellate authorities are quashed and set aside. The matter is remitted to the disciplinary authority to have a fresh look in the matter in the light of observations made above. The observations made in this order would not be construed as final expression of opinion. The same are to be treated as tentative and only for purposes of deciding the present OA. Concerned authorities would be free to take their own decision, but the points referred to in the order shall be taken into consideration and decision shall be taken thereon.
12. The Application is partly allowed in the manner indicted above. There shall, however, be no order as to costs.
( L. K. Joshi ) ( V. K. Bali ) Vice-Chairman (A) Chairman /as/