Central Administrative Tribunal - Delhi
Shri Sandeep vs Government Of Nct Of Delhi on 24 May, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, NEW DELHI O.A. No. 1715/2008 New Delhi, this the 24th day of May, 2010 HONBLE MR. L.K. JOSHI, VICE CHAIRMAN (A) HONBLE MRS. MEERA CHHIBBER, MEMBER (J) Shri Sandeep Roll No.413136 S/o Shri Mahveer R/o Village & P.O. Bachhod, Tehsil Narnaul, District Mohinder Garh, Haryana-123021. ..Applicant By Advocate: Shri Sachin Chauhan. Versus 1. Government of NCT of Delhi Through commissioner of Police, Police Headquarters, I.P. Estate, New Delhi. 2. Deputy Commissioner of Police, 4th Bn., Through Police Headquarters, I.P. Estate, M.S.O. Building, New Delhi. ..Respondents By Advocate: Shri R.N. Singh. O R D E R
By Honble Mrs. Meera Chhibber, Member (J) Applicant has challenged order dated 18.3.208 whereby he has not been found fit for appointment as Constable (Executive) (page 19-C). He has further sought a direction to the respondents to appoint him as Constable (Executive) in Delhi Police with all consequential benefits, including seniority and promotion and pay and allowances.
2. The brief facts, as stated by the applicant, are that a show cause notice dated 3.8.2007 was issued to the applicant (page 20) as to why his candidature should not be cancelled as he was acquitted due to compromise most probably due to the fear in the minds of witnesses not to depose against him. Since he was involved in rioting and wrongful restraint, which shows that he had a tendency to involve himself in criminal activities, therefore, the acquittal in the criminal case cannot be said to be a honourable acquittal (page 20). Applicant gave his reply, yet vide order dated 8.8.2007 his candidature was cancelled by the respondents on the same ground as mentioned in the show cause notice dated 27.8.2008 (page 21). Being aggrieved applicant field OA No. 1609/2007 which was disposed of on 17.12.2007 by observing as follows:-
Once again, reading of the entire judgment does not make it out to be a case which might have been decided on the basis of a compromise. Even though, once again, the prosecution witnesses may not have supported the prosecution case, but what transpires is that the applicant was acquitted in one criminal case by giving him benefit of doubt but in the other, he was acquitted as there was no evidence whatsoever against him. Both the judgments are not an outcome of any compromise. That being so, the very basis of the impugned order (Annexure A-2) is factually incorrect. Confronted with the position aforesaid, Mr. Ajesh Luthra, counsel representing the respondents, was not in a position to defend the impugned orders.
3. The show cause notice and order canceling candidature of the applicant was thus quashed and set aside. The matter was remitted back to the respondents to reconsider the candidature of the applicant and for passing appropriate orders in accordance with law.
4. After the above directions were given, respondents have passed order dated 18.3.2008 whereby applicants candidature has again been cancelled on the following grounds:-
1. Your acquittal is not honourable but due to the facts that the prosecution witnessed turned hostile.
2. In both the cases you were found involved in case of rioting and causing injuries as a part of unlawful assembly. It shows that :-
(i) You have a tendency to involve yourself in grave and serious criminal activities.
(ii) You have a tendency to take law into your own hands for setting personal issue.
(iii) You have a tendency to be armed with deadly weapons to indulge in crime and intimidation.
3. The act of concealment about one criminal case in the application form proves dishonest intention to seek appointment in Delhi Police on false declaration which render you unfit to be appointed as Constable (Executive) in Delhi Police.
5. Applicant has now challenged this order on the ground that new grounds have been taken by the respondents to cancel his candidature. Concealment about one criminal case was not even mentioned in the earlier show cause notice. In any case since the show cause notice was already quashed before passing the impugned order, applicant ought to have been given an opportunity to defend himself. Applicant submitted that though in the application form applicant had mentioned only about one criminal case, but he had mentioned about both the criminal cases in the attestation form, therefore, it cannot be termed as concealment of facts. To substantiate this averment, he has relied on the judgment in the case of Amit Kumar Vs. Govt. of NCT of Delhi and Others (OA No. 3007/2009) decided on 3.5.2010. He further submitted that since this Tribunal had already held that applicant had been acquitted by the criminal court on merit, it was a clean acquittal, therefore, respondents could not have taken a different view in the impugned order.
6. Respondents have opposed this OA. They have stated that the case was registered on the basis of statement made by Abey Singh S/o Shri Umrao Singh wherein he stated that on 4.8.2003 at about 1/1-1/2 p.m., two TATA 407 came on Akaara, which is adjacent to the house of his neighbour and they having a lathi, sword gave a beating to Mehar Chand, Manoj and Ashok. Above three boys ran away and entered in his house, Vikas having a sword, Sandeep having a lathi, Bittu having a swaord, Inder @ Laden having a lathi along with 20/25 persons gave beating to Mehar Chand, Manoj and Ashok, broke the door windows of his house. On seeing the occurrence, Rajinder @ Raju and Mintu came at the spot. Above named accused threatened to kill them while they were going. Investigation started and after completion of investigation, the challan was presented in the court. However, the witnesses turned hostile because of the pressure of the applicant. Moreover, in the judgment it was clearly mentioned that prosecution failed to prove the charge beyond reasonable doubt, therefore, it is the prerogative of the authorities to decide whether such a person is fit to be retained in police force or not. The Tribunal does not give any direction to give appointment to the applicant but only remitted the matter to reconsider it. The matter was reconsidered by a committee. No mala fides have been alleged against the committee members. Since committee had come to the decision, after due application of mind, therefore, this case calls for no interference. The same may accordingly be dismissed.
7. We have heard both the counsel and perused the pleadings as well.
8. Perusal of the impugned order shows that initially applicant had given the details of only one criminal case, i.e., FIR No.104 dated 4.8.2003 under Section 148/149/323 IPC, PS Ateli. However, in the attestation form he had given the details of the other criminal case also, i.e., FIR No. 257 dated 9.11.2001 under Section 148/142/323 IPC, PS City Narnaul. It is also an admitted position that in both the criminal cases applicant had been acquitted by the court of law. The question here is whether in these circumstances applicants candidature could have been cancelled. It has repeatedly been held by the Tribunal in number of cases that if a person reveals pendency of a criminal case even in the attestation form before he is given the appointment, it cannot be termed as concealment of facts. One of the grounds for canceling the candidature of applicant is that he had concealed his involvement in FIR No. 257 dated 9.11.2001. Moreover, admittedly applicant was not given any opportunity to defend himself on this ground before cancelling his candidature. After all, if respondents felt that he had concealed some material fact, at least, he should have been put on notice or given a chance to defend himself. Not having done so, this order is liable to be quashed on this ground alone.
9. Even otherwise, it is seen that when applicant had approached this Tribunal earlier, this Tribunal had specifically observed that he was acquitted in one case as there was no evidence whatsoever against him and in the other case he was given benefit of doubt. It was held that it is thus wrong to suggest that he was acquitted due to compromise. On this ground show cause notice and the order both were quashed. Since Tribunal had already quashed the show cause notice on the ground that the very basis of the show cause notice was wrong, respondents ought to have issued fresh show cause notice to the applicant giving the reasons why they think applicants candidature needs to be cancelled so that he could have answered, but admittedly no such show cause notice was issued to the applicant. His candidature was cancelled on 18.3.2008. This, according to us, is not correct approach because since respondents were denying right of appointment to a person, the least that is expected of them was to give proper show cause notice to the applicant before taking final view in the matter.
10. In view of above discussion, order dated 18.3.2008 is quashed and set aside. Respondents are given opportunity to pass appropriate orders after following due process of law. This may be done within a period of 3 months from the date of receipt of a copy of this order.
11. OA stands disposed of with the above directions. No costs.
(MRS. MEERA CHHIBBER) (L.K. JOSHI)
Member (J) Vice Chairman (A)
Rakesh
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 3434/2009
New Delhi, this the day of May, 2010
HONBLE MR. L.K. JOSHI, VICE CHAIRMAN (A)
HONBLE MRS. MEERA CHHIBBER, MEMBER (J)
Ombir Singh (Inspector)
No.D-1/784
S/o Late Shri Goverdhan Singh
R/o Quarter No.C-36,
P.S. Geeta Colony,
Delhi-110031. ..Applicant
By Advocate: Shri S.C. Sagar.
Versus
Commissioner of Police,
Police Headquarters,
I.P. Estate,
New Delhi. ..Respondents
By Advocate: Shri M. Chander Mani Bhardwaj for
Ms. Rashmi Chopra.
O R D E R
By Honble Mrs. Meera Chhibber, Member (J)
Applicant has challenged order dated 13.7.2009 whereby he has been censured and also order dated 16.10.2009 whereby his appeal has been rejected.
2. It is stated by the applicant that a show cause notice dated 12.3.2009 was served on the applicant alleging as follows:-
That on 30.11.2008 an information from PCR vide D.D. No. 30-A was received in P.S. K.M. Pur that Truck No. HR 47 A-0980. loaded with iron rods hit jhuggi in East Kidwai Nagar and one person got injured who was admitted into Trauma Centre, AIIMS, New Delhi by HC Ram Avtar No.718/PCR, I/C E-93. This D.D. entry was entrusted to HC Ranbir Singh, 35/SD who collected M.L.C. No.145279/08 of Varun S/o Shivalat Paswan R/o Jhuggi, East Kidwai Nagar. The patient was fit for statement and truck driver Mr. Nar Singh S/o Ram Chand Gautam was also present in the hospital but I.O. HC Ranbir Singh did not register the case and filed the call vide D.D. No. 26-B dated 30.11.2008 P.S. K.M. Pur on the pretext that injured persons family members have settled the matter amicably with the truck driver after taking money from him. Mr. Varun Paswan later died in the hospital on 6.1.2009 and I.O. got conducted the proceedings u/s 174 Cr.P.C. On scrutiny of inquest papers and original Daily Diary resister, it is revealed that HC Ranbir Singh No.35/SD intentionally did not place the D.D. No. 30-A dated 29/30.11.2008 P.S. K.M. Pur in which truck number is mentioned on the inquest file. There is discrepancy in the copy of D.D. No. 31-A dated 30.11.2008 P.S. K.M. Pur, placed in the inquest file and its entry in the Daily Diary register. Material facts regarding hitting of Jhuggi wall by Truck is not mentioned in the copy placed in the inquest file. I.O. has written in the brief history in the application to autopsy surgeon that relatives of the deceased did not express any doubt regarding his death, further mentioning it as an accidental death while it was a case of accident. Thus HC Ranbir Singh No.35/SD did not take the legal action properly on D.D. No. 30-A dated 30.11.2008 P.S. K.M. Pur and failed to register a case under proper section of law instead converted the matter into proceedings under Section 174 Cr.P.C. He has tampered with evidence and twisted the facts in inquest file intentionally with mala fide intention and hence converted a case of 304- IPC to 174 Cr.P.C. after the victim died very cleverly having filed the call vide D.D. No. 26-B dated 30.11.2000 on the pretext of a compromise with family members. The right course of action should have been for the I.O. to have registered a case of accident on the very Ist instance, i.e., on 30.11.2008 instead he not only tried to mislead but also twisted facts in order to file the call the same day. The PCR call entered at D.D. No.30-A dated 30.11.2008 had all the details which he conveniently and deliberately did not make part of inquest file. You, Inspector Ombir Singh No.D-I/784, SHO/K.M. Pur failed to monitor the action taken by I.O. in the instant matter which shows your casual attitude towards such cases.
The above act on your part amounts to gross negligence, carelessness and dereliction in the discharge of your official duty.
You are, therefore, called upon to show cause as to why your conduct should not be censured. Your reply, if any, in this regard should reach the undersigned within 15 days from the date of its receipt, failing which it will be presumed that you have nothing to say in your defence and the notice will be decided on its merit.
3. Applicant gave his reply. However, without considering his reply, disciplinary authority censured the service of the applicant vide order dated 13.3.2009. Being aggrieved, applicant filed his appeal but that has also been rejected vide order dated 16.10.2009. Applicant has challenged these orders on the ground that since the matter was compromised between the parties vide DD Entry No.31-A so HC Ranbir Singh had not taken any action on the basis of said D.D. Entry, hence applicant was not required to probe the matter any further. No complaint was made to the applicant by the injured or family members till 6.1.2009 meaning thereby that they had approached him after 38 days for registering case against offending vehicle owner No.HR-47-A-0980. But before that no statement was given either by the injured or his family members or HC Ram Avtar No.718/PCR, therefore, naturally D.D. Entry No.31-A dated 30.11.2008, 5-A and 30-B dated 6.1.2009 were kept pending. Since it is the role of Investigating Officer to investigate and make the D.D. Entry, applicant cannot be penalized by the wrong actions of the I.O., if any, specifically when no action has been taken against the I.O. It is not feasible or desirable for the SHO to go to each and every spot and investigate particularly the trivial matters. Since the parties had arrived at a compromise, the applicant was not at any fault. He thus prayed that the censure may be dropped. He also submitted that no action has been taken against HC Ranbir Singh. It was only on the direction of appellate authority that the impugned order dated 16.10.2009 was issued to the applicant on the basis of which show cause notice for censure was issued against him, which amounts to discrimination.
4. We have heard the counsel for the applicant.
5. Perusal of the order shows that all the contentions raised by the applicant were duly considered by the authorities. Applicant was even given hearing in the orderly room but after considering his reply disciplinary authority was of the view that the applicant, who was working as an SHO, had been slaked in his supervision. They did not appreciate the defence of the applicant that as an SHO, it is not feasible or desirable to go to each and every spot and investigate particularly the trivial matters, when a mans life has been lost and all stand to benefit except the actual victim. It was specifically mentioned that if as an SHO he cannot monitor, supervise and control acts of his subordinate, then the applicant should quit as he has not even bothered to issue a memo to his Head Constable working under him. Moreover, respondents have specifically stated in their reply that action was taken against HC Ranbir Singh also as departmental enquiry has been ordered against him on 13.3.2009 while applicant was only issued show cause notice for censure. In view of above it is wrong to suggest that he has been discriminated against. After all as an SHO, it is his duty to supervise his subordinates and to guide them. He did not monitor the action taken on the DD register and MC Register properly, which resulted in deliberate delay on the part of the Inquiry Officer. If only applicant had asked for progress report in a routine manner from the Inquiry Officer, the case could have been registered much earlier. It is specifically noted by the appellate authority that it is his duty to guide the IO for further course of action to be taken in time. Moreover, when a mans life has been lost, it is his duty to verify the facts. This clearly shows that the authorities have applied their mind before issuing order of censure. We, therefore, think this case calls for any interference. The same is accordingly dismissed. No costs.
(MRS. MEERA CHHIBBER) (L.K. JOSHI)
Member (J) Vice Chairman (A)
Rakesh
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
C.P. No. 230/2010 In
OA No.1706/2009
New Delhi, this the th day of May, 2010
HONBLE MRS. MEERA CHHIBBER, MEMBER (J)
HONBLE MR. SHAILENDRA PANDEY, MEMBER (A)
Tushar Ranjan Mohanty
S/o Shri Rabi Narayan Mohanty
Deputy Director General,
Ministry of Tribal Affairs,
L-603, Ratnagiri Apartments, Kaushambi,
Ghaziabad. ..Applicant
Applicant in person.
Versus
Dr. Pranob Sen
Chief Statistician of India and Secretary,
Ministry of Statistics and Programme Implementation,
Sardar Patel Bhawan,
Sansad Marg,
New Delhi-110 001. Respondent
ORDER
By Honble Mrs. Meera Chhibber, Member (J)
C.P. No. 230/2010 was filed alleging disobedience of order dated 22.2.2010 passed in OA No. 1706/2009 which read as under:-
Ultimately the question is as to whether the sealed cover in respect of the applicant for promotion to the post of SAG is to be opened in view of the conclusion of the pending proceedings, which were cited as the reason for adopting that course. It is brought to our notice that a Division Bench while disposing of OA No. 1705/2009 filed by the applicant by order dated 17.2.2010 has already directed the respondents to open the sealed cover. We feel that this alone would have been the direction that could be passed in this OA also. We also notice that charge sheets issued in respect of major and minor penalty proceedings have been quashed. It is not brought to our notice that there is any other disabling factor now for not opening the sealed cover.
2. Mr. Gangwani learned standing counsel submits that the matter is in active consideration and what is required to be done will be positively done. This is recorded. We fix no time limit, but would expect action within three weeks from today.
OA stands disposed of as above.
2. It is stated by the applicant, who appears in person, that till date respondents have not opened the sealed cover of the applicant in spite of directions given by this Tribunal. Respondents on the other hand have stated that though minor and major charge-sheets have been quashed by the Tribunal, but criminal proceedings against Shri Mohanty filed by one officer of this Ministry alleging physical assault and destruction of official records is pending in the court of the Metropolitan Magistrate, New Delhi. The FIR was registered on 29.2.2008. The said case is still pending. After the orders were passed, the matter was referred to the Department of Personnel and Training, who have opined that sealed cover can be opened only on the conclusion of criminal prosecution. In the instant case not only criminal case is pending but department had issued a sanction for prosecution of Shri Mohanty under the Cr.P.C/IPC. They have thus stated that since criminal case is pending against the applicant, he cannot be given promotion as affirmed by the Ministry of Law as well keeping in view the judgment given by the Honble Supreme Court in the case of U.O.I. Etc. Etc. Vs. Jankiraman Etc. Etc. reported in AIR 1991 SC 2010. They have thus prayed that the CP may be dropped.
3. Even otherwise, counsel for the respondents produced order dated 7.5.2010 passed in C.M. No. 5379/2009 in W.P. ( C) No.4346/2007 by the Honble High Court of Delhi, which reads as under:-
CM No. 5379/2009 in W.P. ( C) No. 4346/2007 and Cont. CAS *C( No.615/2009 in W.P. ( C) No. 4346/2007 and the office order dated 21.4.2010 has been passed finally fixing the pay scale of the petitioner. Learned A.S.G. assures that the arrears would be remitted within a maximum period of one month from today.
Learned A.S.G. points out that the petitioner, in the meantime, had filed certain contempt petitions which the petitioner undertakes to withdraw. The petitioner assures that no further proceedings will be initiated till the next date.
List for directions on 30.7.2010.
4. Learned counsel for the respondents submitted that in view of above, the present Contempt Petition should not be proceeded further and petitioner should have withdrawn the same.
5. Applicant on the other hand insisted that he had never given any undertaking to withdraw the present C.P. and he had referred to the other CPs pending in the Honble High Court of Delhi.
6. We have heard applicant as well as counsel for the respondents.
7. Since we were not present in the court, we do not know what actually transpired in the court. We have only to go by the language used by the courts order. Perusal of the C.M. shows that the Learned A.S.G. points out that the petitioner, in the meantime, had filed certain contempt petitions which the petitioner undertakes to withdraw. He had also assured that no further proceedings would be initiated against the petitioner till the next date of hearing. We do not know to which petitions he referred is not known to us. Since the above said matter is listed on 30.7.2010, it would be better that this C.P. be listed after the said date so that the position would be known to both the parties. Accordingly, list this C.P. on 5.8.2010.
(SHAILENDRA PANDEY) (MRS. MEERA CHHIBBER)
MEMBER (A) MEMBER (J)
Rakesh