Central Administrative Tribunal - Delhi
Mukesh Kumar Tyagi vs Commissioner Of Police on 22 April, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, NEW DELHI O.A.NO.758 OF 2013 This the 22nd day of April, 2015 CORAM: HONBLE SHRI SUDHIR KUMAR, ADMINISTRATIVE MEMBER & HONBLE SHRI RAJ VIR SHARMA, JUDICIAL MEMBER Mukesh Kumar Tyagi, working as Inspector in Delhi Police, presently posted in 7th Bn. DAP, Malviya Nagar, New Delhi Address: House No.45, Village & PO-Chatterpur, New Delhi . Applicant (By Advocate: Mr.S.N.Kaul) V. 1. Commissioner of Police, National Capital Region, Indraprastha Marg, New Delhi 2. Deputy Commissioner of Police, West District, Delhi 3. Joint Commissioner of Police, South West Range, New Delhi .. Respondents (By Advocate: Mrs.P.K.Gupta) ORDER Raj Vir Sharma, Member (J):
The applicant is an Inspector in Delhi Police. The Deputy Commissioner of Police, West District, New Delhi, issued a show-cause notice dated 11.3.2011 calling upon the applicant to file written reply showing cause as to why his conduct should not be censured for the alleged negligence and dereliction in the discharge of his duties as SHO, PS Mianwali Nagar, New Delhi, while conducting an enquiry into the complaint made by Mr.Manish Kumar. On 15.4.2011 the applicant submitted his written reply to the said show cause notice, denying the charge levelled against him. In his written reply, the applicant, inter alia, pleaded that the Assistant Commissioner of Police, Punjabi Bagh, had not directed him to enquire into the complaint made by Mr.Manish Kumar, and that SI Mr.Shyo Ram had conducted the enquiry and submitted his enquiry report dated 3.2.2011, which was only forwarded by him to the Assistant Commissioner of Police, Punjabi Bagh. The Deputy Commissioner of Police, West District, New Delhi, passed an order dated 16.5.2011, confirming the show cause notice and censuring the conduct of the applicant. The copy of the note/report dated 5.2.2011 of the Assistant Commissioner of Police, Punjabi Bagh, which formed part of the disciplinary proceedings, was supplied to him on 13.2.2012. On 12.3.2012 the applicant made an appeal to the Joint Commissioner of Police, South-Western Range, New Delhi, questioning the censure order dated 16.5.2011 passed by the Deputy Commissioner of Police, West District, New Delhi. His appeal dated 12.3.2012 was rejected, as being time barred, by the Joint Commissioner of Police, South West Range, New Delhi, vide his order dated 16.7.2012. Hence, the applicant has filed the present Original Application seeking the following relief(s):
a. Hold that impugned order dated 16.5.2011 passed by the Disciplinary Authority whereunder the applicant had been awarded the punishment Censure under Delhi Police Punishment and Appeal Rules 1980 is bad in law and thus not maintainable.
b. Hold that the order of appellate authority dated 16.7.2012 to dismiss the appeal of the appellant on the ground of limitation and not on merits is not maintainable both in fact and in law.
c. Quash impugned orders dated 16.5.2011 and 16.7.2012 passed by the Disciplinary and Appellate Authority respectively as these are without any lawful basis.
d. To impose exemplary cost against the respondents for their totally unlawful action against the applicant.
2. Opposing the O.A., the respondents have filed a counter reply, wherein it is, inter alia, stated that the disciplinary authority, after following the procedure prescribed under the rules, has passed the order censuring the conduct of the applicant for his proven misconduct, negligence, and dereliction in the discharge of his duties, and that the appeal made by the applicant being time barred, the appellate authority, vide its order dated 16.7.2012, has rightly rejected the same. The respondents have also stated that vide letter dated 13.4.2011 copies of all documents were supplied to the applicant through the Assistant Commissioner of Police, MACT Cell, West. Thus, it is submitted by the respondents that there is no scope for interference by the Tribunal and the O.A. deserves to be dismissed.
3. The applicant has filed a rejoinder reply refuting the stand taken by the respondents in their counter reply.
4. We have perused the records and have heard Mr.S.N.Kaul, learned counsel appearing for the applicant, and Ms. P.K.Gupta, learned counsel appearing for the respondents.
5. A perusal of the records reveals the following:
5.1 One Mr.Manish Kumar appeared at the office of the Deputy Commissioner of Police, West District, New Delhi and complained to have received a phone call from a girl on 3.12.2010 stating that if he required, she could manage to get loan for him. Even though he initially refused, yet, on her insistence, he finally agreed. He then met the said girl near Red Light, Paschim Vihar, when she disclosed her name as Simran and took him to a house at Nihal Vihar. After few minutes, three/four people came there; one of them being in police uniform, and another introducing himself from the media. They all threatening him to implicate in a rape case took Rs.50, 000/- from him.
5.2 The Assistant Commissioner of Police, Punjabi Bagh, apparently took up the matter and initially directed Inspector Dharam Pal and Head Constable Rajbir Singh to enquire into the complaint of Mr.Manish Kumar and submit a report. The said Inspector Dharam Pal and Head Constable did not submit any enquiry report.
5.3 On 3.2.2011, when complainant-Mr.Manish Kumar identified Constable Yash Pal, Mianwali Nagar PS, as the police personnel who was involved in the incident, and Constable Yash Pal accepted his fault, the applicant brought the complainant to the Assistant Commissioner of Police, Punjabi Bagh, and sought his permission to register a criminal case against Constable Yash Pal. Instead of granting the permission, as sought by the applicant as SHO, Mianwali Nagar PS, the Assistant Commissioner of Police, Punjabi Bagh, directed Mr.Shyo Ram, Sub Inspector, PS Mianwali Nagar, to enquire into the complaint and submit a report. The said Mr.Shyo Ram, Sub Inspector, submitted a report dated 3.2.2011, which reads thus:
Reference Attached
1. Reference No.TC-461/ACP/PB and 122/SHO/MW Nagar.
2. Name of complainant: Manish Kumar, S/o Sh.Rajinder Kumar R/o A-59B, Old DDA Flats, Paschim Vhar.
3. Gist of complaint: The complainant alleged that on 3.12.10 he received a telephonic call and one girl was speaking from other side. She told that if the complainant required, she can get managed to get him loan. The complainant refused but she insisting on him, finally he agreed. The complainant meet with that girl near red light Paschim Vihar. The girl disclosed her name as Simran and took him in a house in Nihal Vihar. After few minutes 3 / 4 people came there, one was in police uniform. One of them introduced himself from media. They threatened him to implicate in a case of rape. Finally they have taken Rs.50,000 from the complainant.
4. Inquiry: On the enquiry the complainant has given in writing that his matter has been settled and he does not want any police action. Copy of the application dated 3.2.11 is attached herewith.
5. Conclusion: In the view of the application submitted by the complainant, the complaint may please be filed.
Submitted please.
Sd/ SI Shyo Ram PS Mianwali Nagar Dated 03.2.11.
No.TC-122/SHO M.W.Nagar Dated 4.2.11.
SHO/M.W.Nagar ACP/P.Bagh.
Forwarded pl Sd/ S.H.O P.S.Mianwali Nagar, Delhi 03.2.11. 5.4 The complainant-Mr.Manish Kumars application dated 3.2.2011, which is referred to in the report of Mr.Shyo Ram, Sub Inspector, Mianwali Nagar PS, reads thus:
To The Asst. Commissioner of Police, Punjabi Bagh, Delhi.
Sir, The incident of dated 3.12.2010 was already narrated in the office of Dy. Commissioner of Police (West) as a result I participated in the enquiry process. On 3.2.2011 at around 1000 hrs in P.S.Mianwali Nagar, I had recognized the police person who was involved in the incident and he had accepted his fault. Thereafter only I came to know that his name is Yeshpal. SHO had asked me that if I wanted to lodge a complaint, he would lodge the same but I denied because the police person had already accepted his fault and returned my money. I had collected my money in Mianwali Police Station. Thereafter I told SHO that there was an agreement between us, hence I did not want any legal action.
Sd/ (Manish Kumar) S/o Sh.Rajendra Kumar A-598, Old DDA Flats, Paschim Vihar, New Delhi 9811272288 5.5 On 5.2.2011, the Assistant Commissioner of Police, Punjabi Bagh, while forwarding the S.I. Shyo Rams enquiry report dated 3.2.2011(ibid) to the Deputy Commissioner of Police, West Distt., New Delhi, vide his note dated 5.2.2011, stated as follows:
Subject: Complaint of Sh.Manish.
Enclosed please find herewith an enquiry report submitted by SHO Mianwali Nagar Delhi on the complaint of Sh.Manish.
Precisely, the allegations levelled in the complaint are that a beat constable Yash Pal No.1391/W of P.s.Mianwali Nagar (later identified during enquiry) along with his accomplices inducted the complainant through a girl named Simran to come to a place on the pretext of arranging loan. The complainant when reached that place was met by Simran who took him to an office in Nihal Vihar in a room. At that place 3/4 people including one in police uniform surrounded him and started threatening him that the complainant had sexually assaulted Simran. On the basis of this cooked up story, the complainant was forced to pay them Rs.50,000/-. During enquiry, the complainant confronted him to be the same policeman who had threatened him and extorted money from him on the day of the incident along with his accomplices.
An interesting course of enquiry followed thereafter in P.S.Mianwali Nagar. All recourse to the legal procedure was kept aside and the enquiry officer i.e. S.H.O/Mianwali Nagar instead of following the course of enquiry to identify the accomplices of Ct.Yashpal 1391/W, their nexus, the identity of the girl Simran matching their call details records followed a course that lead to a change of heart of Ct.Yashpal 1391/W resulting in an amicable settlement between the complainant and Ct.Yashpal 1391/W in the premises of P.S.Mianwali Nagar itself. As can be gathered from the circumstances, it is needless to say that the complainant has been coerced and cajoled to enter into a settlement with Ct.Yaspal 1391/W. The statement given by the complainant indicates that Ct.Yashpal 1391/W had admitted his fault and has returned the money extorted from the complainant. This fact is a strong suggestion of the misconduct of the constable. It is also interesting to notice that the said constable soon after the incident when the complainant started visiting the P.S.Mianwali Nagar proceeded on 10 days leave from 12.12.2010 to 22.12.2010.
From the facts of the incident, the sequence of events that followed thereafter and from the amazing course of enquiry conducted by the SHO following inferences can be safely drawn:-
i. The beat Ct.Yashpal 1391/W cannot have the audacity to indulge in this extortion without the active or passive approval of the S.H.O. As the complainant was forced/tantalized to enter into enter into an agreement with Ct.Yashpal 1391/W in the presence of the S.H.O. Mianwali Nagar leading to withdrawal of his complainant. The enquiry officer S.I. Shoy Ram was not included in the course of the settlement. (statement of S.I. Shyo Ram is enclosed).
ii. The course of enquiry followed by the S.H.O. and the unusual hurry in reaching the settlement strongly suggests that the S.H.O. was prompted by monetary interests.
iii. The circumstances of the present incident suggest the prevalence of a well organized extortion racket following the above stated modus operandi having the active participation of the uniformed policemen and the protection of the S.H.O. Mianwali Nagar to extort money from people cannot be ruled out.
A strong action against Ct.Yashpal 1391/W and S.H.O.Mianwali Nagar is recommended.
Besides the above, a separate enquiry to establish the identity and antecedents of the other extortionists and their nexus with the local police may be conducted.
Submitted please.
Sd/ (Satish Yadav) A.C.P.Punjabi Bagh 05.02.2011.
D.C.P./W. No.479/ACP/PB Dated 5.2.11 5.6 Thereafter, the Deputy Commissioner of Police, West District, New Delhi, issued the show-cause notice dated 11.3.2011(ibid) calling upon the applicant and Constable Yash Pal, 1391/W, to show cause as to why their conduct should not be censured. For the purpose of clarity, the contents of the show-cause dated 11.3.2011 (ibid) are reproduced below:
SHOW CAUSE NOTICE Constable Yash Pal, No.1391/W while posted as Beat Constable at PS-Mianwali Nagar, along with his accomplices induced Sh.Mahesh through a girl named Simran to come to a place on the pretext of arranging loan. The complainant reached that place and was met by Simran who took him to an office in Nihal Vihar in a room. At that place people including one in police uniform surrounded him and started threatening him that the complainant had sexually assaulted Simran. On the basis of this cooked up story, Manish was forced to pay them Rs.50,000/-. During enquiry, the complainant confronted Const. Yashpal,1391/W in PS-Mianwali Nagar and identified him to be the same policeman who had threatened him and extorted money from him on the day of the incident along with his accomplices.
SHO/Mianwali Nagar instead of following the course of enquiry to identify the accomplices of Const.Yash Pal, 1391/W, their nexus, the identity of the girl Simran matching their call details followed a course that lead to a change of heart of Const. Yash Pal, 1391/W resulting in an amicable settlement between the complainant and Const.Yash Pal, 1391/W in the premises of PS Mianwali Nagar itself. As can be gathered from the circumstances, it is needless to say that the complainant had been coerced and cajoled to enter into a settlement with Const. Yash Pal, No. 1391/W. Const. Yash Pal had admitted his fault and had returned the money extorted from the complainant. The said Constable soon after the incident when the complainant started visiting PS Mianwali Nagar, proceeded on 10 days leave from 12.12.2010.
The above said act on the part of Inspr. Mukesh Kumar Tyagi, No.D-2785 the then SHO/Mianwali Nagar and Const. Yash Pal, 1391/W amounts to gross misconduct, negligence, dereliction in the discharge of their official duties and also unbecoming of a Police Officer. It also shows poor supervision on the part of the Inspector.
They are, therefore, called upon to show cause as to why their conduct should not be censured for the above said lapse. Their written reply, if any, should reach this office within 15 days from the date of its receipt, failing which it will be presumed that they have nothing to say in their defence and the matter will be decided ex parte. 5.7 The applicant submitted his reply on 15.4.2011 denying the charge levelled against him in the show-cause notice. The relevant part of applicants reply dated 15.4.2011 is reproduced below:
It is submitted that in this regard that there is no fault of the applicant as when it come to notice that Const. Yash Pal, no.1391/W is involved in the incident, the applicant brought to Const.Yash Pal before ACP/Punjabi Bagh and sought permission for registration of a criminal case but the ACP Punjabi Bagh did not give the permission and assigned further enquiry in to this matter to Inspr./Investigation Dharam Pal and HC Rajbir Singh, but they did nothing for identification of reaming person. Const. Yash Pal went on leave sanction by Inspr. Dharam Pal.
It is further submitted that settlement had not been took place before the undersigned and nor I spoke to the complainant in this regard in anyway. I specially asked for the complainant to get a case registered but he denied. The statement given before ACP, Punjabi Bagh on 03.02.2011 by the complainant he specifically said SHO SHAIB NE KAHA AGAR AAP CASE KARNA CHAHTE HAI TO MAIN CASE KAR DETA HUN PER MAINA MANA KAR DIYA. The enquiry officer of this complaint was SI Shyo Ram who prepared the enquiry report and I just forwarded it because the action against the const. could be taken at higher level as the complainant retreat from his statement and compromised the matter at his own.
This shows that applicant was not fault at any way. Keeping in view of the above facts and circumstances the show cause notice may kindly be vacated in the interest of justice and I may be heard in person also. 5.8 The Deputy Commissioner of Police, West District, New Delhi, confirmed the show-cause notice and censured the conduct of the applicant, by passing the order dated 16.5.2011, the relevant part of which is reproduced below:
The reply submitted by Inspr. Mukesh Kumar Tyagi, No.D-2785 has been perused. He has also been heard in O.R. His oral and written submission have been found not convincing. Being a supervisory officer, it is his duty to identify and take strict action against black sheep in the force. In this case he neither recommended for strict action against Const. Yashpal nor made any efforts to identify the accomplices of the constable and his nexus. Instead of simply accepted the amicable settlement between the constable and complainant in the premises of PS/Mianwali Nagar itself.
This act on the part of the then SHO/Mianwalil Nagar, Inspr. Mukesh Kumar Tyagi, No.D-2785 speaks volume regarding his complicity in this matter. Moreover, as can be gathered from the circumstances it can be definitely concluded that the complainant has been coerced and cajoled to enter into a settlement with Const. Yash Pal. Hence, finding submission of Inspr. Mukesh Kumar Tyagi, D-2785 not convincing and considering the facts and circumstances of the instant case, the SCN is Confirmed. The conduct of Inspr. Mukesh Kumar Tyagi, No.D-2785 is hereby Censured. 5.9 The applicant, vide his application, dated 25.5.2011(ibid), requested the Additional Commissioner of Police, West Distt., New Delhi, to supply him documents/papers of the disciplinary proceedings as he wanted to file an appeal to the Joint Commissioner of Police against the censure order dated 16.5.2011(ibid). The Additional Commissioner of Police, West District, New Delhi, vide letter dated 2.6.2011, intimated the Assistant Commissioner of Police, Headquarters, West, that as the matter was already decided, the documents/papers would be supplied to the appellate authority only and the applicant had to make his request to appellate authority only.
5.10 As the applicant did not receive any communication on his application dated 25.5.2011(ibid), he made further applications dated 4.8.2011 and 31.10.2011 to the Additional Commissioner of Police, West Distt., to inform him of the action taken on his letter dated 25.5.2011(ibid). There being no response to his letters dated 4.8.2011 and 31.10.2011, the applicant made application dated 3.1.2012 under the R.T.I.Act. The concerned CPIO advised him to obtain the report of the Assistant Commissioner of Police, Punjabi Bagh, on depositing the requisite fee. Accordingly, the applicant made deposit of the requisite fee and got the copy of the report of the said Assistant Commissioner of Police, Punjabi Bagh, on 13.2.2012.
5.11 On 13.2.2012 the applicant received a copy of the report dated 5.2.2011 of the Assistant Commissioner of Police, Punjabi Bagh, and the applicant filed appeal 12.3.2012, the relevant part whereof is reproduced below:
In response to above censure order, I filed my reply to the worthy Addl. Commissioner of Police, West District but the worthy Addl.CP has not seen my reply properly and I am also not been heard properly and awarded this punishment on the report of the ACP Punjabi Bagh which is totally biased, baseless and false. ACP Punjabi Bagh keeps grudge against me. (I want to explain before your goodself).
It is further submitted that their were no fault of the applicant because when it came to notice that Const.Yash Pal, No.1391/W was involved into the incident, the applicant brought all the facts into notice of ACP Punjabi Bagh and Const.Yash Pal was also produced before the ACP, Punjabi Bagh and sought permission for registration of a criminal case but the ACP Punjabi Bagh had not given the permission and entrusted the enquiry to Inspr. Dharmpal, (Inspr.Investigatioin) and Head Const. Rajbir Singh. SI Shyoram was also given this task. But they did nothing for identification of remaining persons. Moreover, after the incident to avoid his identification, Const. Yash Pal went on CL for 10 days. The active connivance of Inspr. Dharmpal was not rule out but ACP Punjabi Bagh overlooked this fact and under the influence of Inspr. Dharmpal prepared a false baseless, and imaginary report against me because both the officers were actively engaged with a land grabber Sukhiwinder Singh to grave a property bearing No.A-85 Mirabagh, New Delhi illegally, as I refused to act on the wrong/illegal direction of ACP Punjabi Bagh which is evident from the report of Joint Commissioner of Police, Vigilance, New Delhi (Copy enclosed).
ACP Punjabi Bagh forwarded the report of enquiry officer SI Shyo Ram initially but later on cut the paper of report of enquiry officer and then the prepared the biased and baseless report.
It is further submitted that settlement had not been took place before the undersigned and nor I spoke to the complainant in this regard in anyway. I specially asked for the complainant to get a case registered but he denied. The statement given before ACP Punjabi Bagh on 03.02.2011 by the complainant he specifically said SHO SHAIB NE KAHA AGAR AAP CASE KARNA CHAHTE HAI TO MAIN CASE KAR DETA HUN PER MAINE MANA KAR DIYA. The enquiry officer of this complained was SI Shyo Ram who prepared the enquiry report and I forwarded it because the action against the Const. could be taken at higher level as the complainant retreat from his statement and compromised the matter at his own. Even in reply of an RTI application, the authority had admitted No criminal case was registered, as the complainant did not want any further police action on his complaint. (copy enclosed). Moreover, the APIO West district had not furnished me the correct information on this issue and I filed an appeal before the Appellate Authority, West District which is still awaited. (Copy enclosed).
Keeping in view of above the facts and circumstances, it is clear that the applicant is not at fault at any way and there was no connivance with Const. Yash Pal. The censure order may kindly be vacated. I may be heard in person also.
The appeal is within time as the applicant received ACP Punjabi Bagh report on 13.02.2012. 5.12 The Joint Commissioner of Police, South-Western Range, New Delhi, vide his order dated 16.7.2012, rejected the applicants appeal as being time barred. The relevant part of the order dated 16.7.2012(ibid) is reproduced below:
Before going into the merits of the appeal, it is obligatory on the part of the Appellate Authority to examine it under rule 24(3) of Delhi Police (Punishment & Appeal) Rules, 1980 whether the appeal is within time limit or it has crossed the prescribed time of appeal i.e. 30 days. With this view, I have gone through the appeal and relevant documents and found that he had acknowledged the punishment order under appeal on 20.5.11. But instead of filing appeal, the appellant applied for the report of ACP/Punjabi Bagh to enable him to file appeal. His request was declined by the punishing authority and his observations were communicated to the appellant vide UO No.8620/P-III/West dated 2.6.11. Thus the appellant should have filed appeal, if he so desired soon after receipt of UO letter dated 2.6.11, but he has filed appeal at his own sweet will on 12.3.12, which is inconsistent with the provision laid down in rule 24(3 ) of Delhi Police (Punishment & Appeal) Rules, 1980. However, in view of the natural justice, I have also heard him in OR on 12.7.12 on the issue of delayed submission of appeal. But the appellant could not give me any cogent reason for justifying condonation of delay in filing the appeal.
In view of this, I do not find any reason to condone the delay and examine the appeal. Hence, the appeal is dismissed being time barred.
6. Before making a note of and considering the rival contentions of the parties, we may refer to some of the decisions of the Honble Supreme Court.
6.1 In Rajinder Kumar Kindra v. Delhi Administration through Secretary (Labour) and Others, AIR 1984 SC 1805, it has been laid down that where the findings of misconduct are based on no legal evidence and the conclusion is one to which no reasonable man could come, the findings can be rejected as perverse. It has also been laid down that where a quasi-judicial tribunal records findings based on no legal evidence and the findings are its mere ipse dixit or based on conjectures and surmises, the enquiry suffers from the additional infirmity of non-application of mind and stands vitiated.
6.2 In B.C. Chaturvedi v. Union of India, AIR 1996 SC 484, reiterating the principles of judicial review in disciplinary proceedings, the Honble Apex Court has held as under:
Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to re-appreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case. 6.3 In R.S. Saini v. State of Punjab and ors, (1999) 8 SCC 90, the Honble Apex Court has observed as follows:
"We will have to bear in mind the rule that the court while exercising writ jurisdiction will not reverse a finding of the inquiring authority on the ground that the evidence adduced before it is insufficient. If there is some evidence to reasonably support the conclusion of the inquiring authority, it is not the function of the court to review the evidence and to arrive at its own independent finding. The inquiring authority is the sole judge of the fact so long as there is some legal evidence to substantiate the finding and the adequacy or reliability of the evidence is not a matter which can be permitted to be canvassed before the court in writ proceedings."
6.4 The above view has been followed by the Honble Apex Court in High Court of Judicature at Bombay through its Registrar v. Shashikant S. Patil, (2000) 1 SCC 416, wherein it has been held as under:
...Interference with the decision of departmental authorities can be permitted, while exercising jurisdiction under Article 226 of the Constitution if such authority had held proceedings in violation of the principles of natural justice or in violation of statutory regulations prescribing the mode of such inquiry or if the decision of the authority is vitiated by considerations extraneous to the evidence and merits of the case, or if the conclusion made by the authority, on the very face of it, is wholly arbitrary or capricious that no reasonable person could have arrived at such a conclusion, or grounds very similar to the above. But we cannot overlook that the departmental authority, (in this case the Disciplinary Committee of the High Court) is the sole judge of the facts, if the inquiry has been properly conducted. The settled legal position is that if there is some legal evidence on which the findings can be based, then adequacy or even reliability of that evidence is not a matter for canvassing before the High Court in a writ petition filed before Article 226 of the Constitution.
6.5 In Syed Rahimuddin v. Director General, CSIR and others, ( 2001) 9 SCC 575, the Honble Apex Court has observed as under:
It is well settled that a conclusion or a finding of fact arrived at in a disciplinary enquiry can be interfered with by the court only when there are no materials for the said conclusion, or that on the materials, the conclusion cannot be that of a reasonable man. 6.6 In Sher Bahadur v. Union of India, (2002) 7 SCC 142, the order of punishment was challenged on the ground of lack of sufficiency of the evidence. The Honble Apex Court observed that the expression "sufficiency of evidence" postulates "existence of some evidence" which links the charged officer with the misconduct alleged against him and it is not the "adequacy of the evidence".
6.7 In Government of Andhra Pradesh v. Mohd. Nasrullah Khan, (2006) 2 SCC 373, the Honble Apex Court has reiterated the scope of judicial review as confined to correct the errors of law or procedural error if it results in manifest miscarriage of justice or violation of principles of natural justice. In para 7, the Hon'ble Court has held:
By now it is a well established principle of law that the High Court exercising power of judicial review under Article 226 of the Constitution does not act as an Appellate Authority. Its jurisdiction is circumscribed and confined to correct errors of law or procedural error if any resulting in manifest miscarriage of justice or violation of principles of natural justice. Judicial review is not akin to adjudication on merit by appreciating the evidence as an Appellate Authority..
7. As regards the applicants challenge to the censure order dated 16.5.2011 (ibid), Mr.S.N.Kaul, learned counsel appearing for the applicant, referred to (i) the letter dated 3.2.2011 of complainant-Mr.Manish Kumar addressed to the Assistant Commissioner of Police, Punjabi Bagh,(ii) the enquiry report dated 3.2.2011 submitted by Mr.Shyo Ram, S.I., Mianwali Nagar PS, (iii) the note/forwarding report dated 5.2.2011 submitted by the Assistant Commissioner of Police, Punjabi Bagh, to the Deputy Commissioner of Police, West District.; (iv) the show-cause notice dated 11.3.2011, and (v) the applicants written reply dated 15.4.2011, and argued that the charge levelled against the applicant in the show-cause notice was totally baseless. When the applicant was not directed to enquire into the complaint made by Mr.Manish Kumar, the question of his following the course of enquiry to identify the accomplices of Constable Yash Pal, their nexus, the identity of the girl Simran, and coercing and cajoling the complainant to enter into a settlement with the said Constable did not arise. In the first instance, the Assistant Commissioner of Police, Punjabi Bagh, had directed Inspector (Investigation) Mr.Dharam Pal and Head Constable Rajbir Singh to enquire into the said complaint and submit a report. The said Inspector and Head Constable did not take any action. Instead the Constable Yash Pal was allowed by Inspector Mr.Dharam Pal to proceed on leave for 10 days. When it came to his notice that Constable Yash Pal was involved in the incident, as alleged by the complainant, on 3.2.2011 the applicant brought the said Constable before the Assistant Commissioner of Police, Punjabi Bagh and sought his permission for registration of a criminal case against him. On 3.2.2011 the complainant also gave a statement before the Assistant Commissioner of Police, Punjabi Bag, that SHO SHAIB NE KAHA AGAR AAP CASE KARNA CHAHTE HAI TO MAIN CASE KAR DETA HUN PER MAINE MANA KAR DIYA. The Assistant Commissioner of Police, instead of giving permission to register a criminal case against the Constable Yash Pal, again directed Mr.Shyo Ram, Sub Inspector, Mianwalil Nagar PS, to enquire into the complaint made by Mr.Manish Kumar and submit a report. SI Shyo Ram prepared the enquiry report, and the applicant only forwarded the enquiry report to the Assistant Commissioner of Police for taking necessary action, as the complainant retreated from his statement and compromised the matter at his own. The learned counsel also argued that the Deputy Commissioner of Police, West District, without considering any of the pleas raised by the applicant in his written reply dated 15.4.2011 (ibid) and without any materials being placed before him contradicting the applicants pleas, inferred that the applicant was guilty of the charge levelled against him in the show-cause notice. It was, therefore, submitted by the learned counsel that both the show-cause notice dated 11.3.2011 and the censure order dated 16.5.2011 being based on no material /evidence implicating the applicant stood vitiated and are liable to be quashed.
7.1 Per contra, Ms.P.K.Gupta, learned counsel appearing for the respondents, submitted that the conclusions have been arrived at by the disciplinary authority on the basis of the materials available on record, and that in the present proceeding before the Tribunal the applicant cannot be allowed to raise the plea of his non-involvement in the enquiry conducted into the complaint of Mr.Manish Kumar. The learned counsel also submitted that everything happened with the tacit approval of the applicant as SHO, PS Mianwali Nagar, and, hence, there is no infirmity in the censure order passed by the disciplinary authority.
7.2 We have carefully considered the submissions made by the learned counsel appearing for the parties. The show-cause notice does not reveal that the applicant was ever directed either by the Assistant Commissioner of Police, or by any other authority, to enquire into the complaint made by Mr.Manish Kumar. It is rather found from the contents of the enquiry report dated 3.2.2011 submitted by the SI Shyo Ram that the enquiry was entrusted to SI Shyo Ram by the Assistant Commissioner of Police, and that the applicant as SHO, Mianwali Nagar PS, simply forwarded the said enquiry report to the Assistant Commissioner of Police. It also transpires from the note dated 5.2.2011 of the Assistant Commissioner of Police that while forwarding the said enquiry report dated 3.2.2011 to the Deputy Commissioner of Police, the said Assistant Commissioner of Police made out a case of applicants negligence and dereliction in the discharge of his duties while conducting the enquiry in question, although the applicant was never directed either by the said Assistant Commissioner of Police, or by any other authority, to enquire into the complaint made by Mr.Manish Kumar. Thus, it is clear that the inferences drawn by the Assistant Commissioner of Police in his forwarding note dated 5.2.2011 were based on his figment of imagination, surmises and conjectures. It also transpires from the show-cause notice that the Deputy Commissioner of Police, simply going by the baseless inferences drawn by the Assistant Commissioner of Police in his forwarding note dated 5.2.2011, called upon the applicant to show cause as to why his conduct should not be censured. As the show cause notice dated 11.3.2011 was not based on any material/evidence implicating the applicant and was based on mere ipse dixit as also surmises and conjectures of the said Assistant Commissioner of Police, we hold that the said show cause notice stood vitiated ab initio.
7.3 Furthermore, if at all Mr.Manish Kumar had lodged any written complaint either before the Deputy Commissioner of Police, or before the Assistant Commissioner of Police, such complaint ought to have been brought on record of the disciplinary proceedings initiated against the applicant and copy thereof supplied to the applicant either along with the show-cause notice, or at subsequent stage of the disciplinary proceedings. If at all Mr.Manish Kumar made oral complaint before the concerned Deputy Commissioner of Police, or before the Assistant Commissioner of Police, the same ought to have been reduced into writing and further course of action directed by either of the said police officers on the complaint. It appears that the concerned Deputy Commissioner of Police, or the Assistant Commissioner of Police, has not only failed to follow the procedure prescribed under the rules, but also attempted to dilute the complaint made by Mr.Manish Kumar, by simply censuring the conduct of the Constable Yash Pal and finding fault with the applicant as SHO, Mianwali Nagar PS, who was never directed to enquire into the said complaint and submit report and was rather found to have scrupulously followed the rules while seeking permission of the Assistant Commissioner of Police to initiate criminal case against Constable Yash Pal. It is surprising to note here that when Mr.Manish Kumar made a complaint alleging commission of cognizable offences by Constable Yash Pal and his accomplices, the Deputy Commissioner of Police and the Assistant Commissioner of Police, instead of directing the applicant as S.H.O., P.S. Mianwali Nagar, to reduce the oral complaint of Mr.Manish Kumar into writing and to register the complaint as a First Information Report and also to undertake investigation, directed Inspector Dharam Pal and Head Constable Mr.Rajbir Singh to enquire into the complaint and submit report. It also transpires from the records that on 3.2.2011 the Assistant Commissioner of Police again directed Mr.Shyo Ram, Sub Inspector, Mianwali Nagar PS, to enquire into the complaint and submit a report, although the applicant sought permission from the Assistant Commissioner of Police to register a criminal case against Constable Mr.Yash Pal, as pleaded by the applicant in his written reply. In the present case, it is found that after acting in a manner inconsistent with the rules and procedure prescribed for registering a complaint as an FIR and investigation in the case involving cognizable offences, the Assistant Commissioner of Police and the Deputy Commissioner of Police have not only diluted the complaint disclosing commission of cognizable offence by Constable Yash Pal & others, and hushed up the criminal case against Constable Yash Pal, but also initiated disciplinary action against the applicant who was admittedly not involved either in the commission of offences disclosed in the complaint of Mr.Manish Kumar or in the enquiry into the complaint.
7.4 Besides the complainants letter dated 3.2.2011 addressed to the Assistant Commissioner of Police and the enquiry report dated 3.2.2011 submitted by SI Shyo Ram, no other statement either of the complainant or of the SI Shyo Ram has been brought on record by the respondents.
7.5 The censure order dated 16.5.2011, the relevant part of which is reproduced in paragraph 5.8 above, does not reveal the Deputy Commissioner of Police to have considered any of the pleas raised by the applicant in his written reply dated 15.4.2011. The said censure order dated 16.5.2011 is also found to have been based on the inferences drawn by the Assistant Commissioner of Police in his note dated 5.2.2011, which were not supported by any material/evidence against the applicant. Suspicion, as is well known, however high may be, can under no circumstances be held to be a substitute for legal proof.
7.6 In consideration of the above, we find substantial force in the submissions of Mr.Kaul, learned counsel appearing for the applicant. Accordingly, we hold that both the show-cause notice dated 11.3.2011 and the censure order dated 16.5.2011, being based on no evidence/material against the applicant, even remotely suggesting any negligence or dereliction in the discharge of his duties, stood vitiated and hence, are liable to be quashed.
8. As regards the applicants challenge to the order dated 16.7.2012 passed by the appellate authority rejecting his appeal as being time barred, Mr.S.N.Kaul, learned counsel appearing for the applicant, submitted that under Rule 23(4) of the Delhi Police (Punishment & Appeal) Rules, 1980, the applicant was entitled to apply for copy of the complete records of the disciplinary proceedings for the purpose of filing an appeal against the censure order dated 16.5.2011, and the disciplinary authority was under an obligation to supply the same to the applicant. The copy of the note dated 5.2.2011 of the Assistant Commissioner of Police having admittedly been supplied to the applicant on 13.2.2012, the applicants appeal filed on 12.3.2012 ought not to have been treated as time barred and rejected by the appellate authority. Therefore, the order dated 16.7.2012 passed by the appellate authority, being unsustainable, is liable to be rejected.
8.1 On the other hand, Ms.P.K.Gupta, learned counsel appearing for the respondents, submitted that when, admittedly, copies of all the relevant documents had earlier been supplied to the applicant, there was hardly any requirement to once again supply the same to the applicant. It was also submitted by the learned counsel that when intimation was given to the applicant to get the copies of the documents from the appellate authority, to whom the entire record was submitted, he ought to have made a request in that behalf to the appellate authority before expiry of the stipulated period of thirty days and, accordingly, preferred the appeal within time. But, instead of doing so, the applicant, after obtaining copy of the report of the Assistant Commissioner of Police on 13.2.2012, preferred the appeal on 12.3.2012 questioning the disciplinary authoritys order dated 16.5.2011. Thus, the appellate authority rightly rejected the applicants appeal as being time barred.
8.2 We have bestowed our consideration to the respective contentions of the learned counsel for the parties. Admittedly, the applicant made application for supplying copy of the complete records of the disciplinary proceedings, but the disciplinary authority, instead of supplying him the copy of the complete records of the disciplinary proceedings, issued a communication dated 2.6.2011 to the Assistant Commissioner of Police, HQ, West, that as the matter was already decided, the documents/papers would be supplied to the appellate authority only, and that the applicant had to make his request to the appellate authority only. The respondents in their counter reply have also taken a plea that on his request all the required documents were provided to the applicant, vide letter dated 13.4.2011 through the Assistant Commissioner of Police, MACT Cell, West, and accordingly the applicant had submitted his reply to the show-cause notice. The respondents have not filed a copy of the letter dated 13.4.2011 (ibid) along with their counter reply, or at the time of hearing, to show that copies of all the required documents including the Assistant Commissioner of Polices note dated 5.2.2011 (ibid) were supplied to the applicant. They have not stated in their counter reply that copy of the note dated 5.2.2011 of the Assistant Commissioner of Police was supplied to the applicant, vide letter dated 13.4.2011, which, as discussed in the preceding paragraphs, formed the basis of the show-cause notice dated 11.3.2011 and the order dated 16.5.2011 passed by the Deputy Commissioner of Police censuring the conduct of the applicant. In view of this, we have no hesitation to hold that the respondents have not been able to substantiate their plea that copies of complete records of the disciplinary proceedings were supplied to the applicant for filing appeal against the censure order dated 16.5.2011 within the stipulated period of one month, and that as the said note dated 5.2.2011 of the Assistant Commissioner of Police formed the basis of the show-cause notice dated 11.3.2011 as well as the censure order dated 16.5.2011, non-supply of copy of the same not only amounts to denial of reasonable opportunity to the applicant of knowing the circumstances, if any, appearing against him in the note dated 5.2.2011 (ibid), but also denial of copy of the complete records of the disciplinary proceedings in clear violation of Rule 23(4) of the Delhi Police (Punishment & Appeal)Rules, 1980. Therefore, the order dated 16.7.2012 passed by the appellate authority, i.e., Joint Commissioner of Police, South Western Range, New Delhi, rejecting the applicants appeal filed by him on 12.3.2012 after he received the copy of the note dated 5.2.2011 of the Assistant Commissioner of Police, is unsustainable and liable to be quashed. In view of our findings that the show-cause notice dated 11.3.2011 and the censure order dated 16.5.2011 stood vitiated and are liable to be quashed on account of lack of any material/evidence against the applicant, even remotely suggesting negligence and dereliction in the discharge of his duties in the matter of enquiry into the complaint of Mr.Manish Kumar, and non-consideration of any of the pleas raised by the applicant in his written reply, we are not inclined to remit the applicants appeal dated 12.3.2012 to the appellate authority for considering the same on merits.
9. In the light of above discussions, we quash the show cause notice dated 11.3.2011, so far as the applicant is concerned, as well as the censure order dated 16.5.2011 issued by the Deputy Commissioner of Police, West District, New Delhi, and the order dated 16.7.2012 passed by the Joint Commissioner of Police, South Western Range, New Delhi.
10. Accordingly, the O.A. is allowed. No costs.
(RAJ VIR SHARMA) (SUDHIR KUMAR) JUDICIAL MEMBER ADMINISTRATIVE MEMBER AN