Central Administrative Tribunal - Delhi
H.C. Durga Parsad vs Govt. Of Nct Of Delhi Through ... on 13 November, 2009
Central Administrative Tribunal Principal Bench OA No.2132/2007 New Delhi this the 13th day of November, 2009. Honble Mr. Shanker Raju, Member (J) Honble Dr. Veena Chhotray, Member (A) H.C. Durga Parsad, PIS No.28801335, R/o House No.21, Hari VIhar, Kakrola Morh, New Delhi. -Applicant (By Advocate Shri Anil Singhal) -Versus- 1. Govt. of NCT of Delhi through Commissioner of Police, Police Head Quarters, IP Estate, New Delhi. 2. Joint Commissioner of Police, Northern Range, PHQ, I.P. Estate, New Delhi. 3. Dy. Commissioner of Police, North-West Distt, P.S. Ashok Vihar, New Delhi. -Respondents (By Advocate Ms. Lata Gangwani) O R D E R Honble Mr. Shanker Raju, Member (J):
Applicant, a Head Constable in Delhi Police, by virtue of this OA, has challenged disciplinary authoritys (DA) order dated 15.11.2005, whereby after a departmental enquiry a penalty of withholding of one increment for a period of one year, without cumulative effect, has been imposed and the period of suspension from 16.2.2004 to 8.5.2005 has been treated as not spent on duty. Also assailed is an appellate order dated 24.1.2006, upholding the punishment.
2. Applicant, who was an investigating officer (IO) in a criminal case registered for causing rash and negligent driving, was investigating the matter and the challan was yet to put and prosecution objection as to removal of defects was yet to be ascertained and carried out, the case of compensation has come up before MACT where on summoning the documents, it has been found by the MACT court that there were certain discrepancies in the investigation in preparation of documents. As such, an enquiry ordered against applicant was proceeded under Rule 16 of the Delhi Police (Punishment & Appeal) Rules, 1980 and though applicant was not held guilty for malafide intention, yet discrepancies in the documents were established, on the basis of which, on representation of applicant, holding him guilty on the basis of observation of lapses by the Court and on the fact that IO should have prepared the documents properly and non-negligently, imposed the penalty. In appeal, for not doing proper investigation applicant was held guilty of the charges. In fact on stricture passed by the Court a different procedure is laid down under Rule 13 of the Delhi Police (Punishment and Appeal) Rules, 1980, which has not been followed.
3. Learned counsel of applicant states that the discrepancies were minor without any malafide intention and after submission of challan and before criminal trial begins, these minor discrepancies are corrected, which would not have entailed any serious repercussion or culpability, would have removed on completion of investigation on submission of trial. However, without adhering to that aspect of the matter, written discrepancies have been found by the MACT without any jurisdiction. Applicant has not committed any misconduct, at best it may be an error of judgment, which is not punishable as per the decision of the Apex Court in Inspector Prem Chand v. Govt. of NCT of Delhi, 2007 (5) SCALE 421.
4. On the other hand, learned counsel of respondents would vehemently oppose the contentions and stated that applicant while investigating FIR No.124/2003 under Section 279/338 IPC has negligently conducted the investigation and was rightly found at fault. As such, the punishment imposed is commensurate with the misconduct.
5. On careful consideration of the rival contentions of the parties, though misconduct cannot be precisely defined but negligence in order to be misconduct has to be deliberate with culpability and resultant damage, as ruled by the Apex Court in Union of India v. J. Ahmed, (1979) 2 SCC 286. In Prem Chand (supra) the IO was charged of a laxity in investigation and an error of judgment has been found, which was not ruled as misconduct.
6. It is trite that while investigating a case certain statements are recorded and documents are prepared. Whenever, any discrepancy is found before submission of challan the concerned Directorate of Prosecution and the Prosecution Incharge gives an opportunity to the IO to correct those documents. As such, when the documents are completed in all respects, form party of the chargesheet, which is taken cognizance by the Magistrate concerned. In the instant case investigation was yet to be complete and a chargesheet was yet to be filed under Section 173 Cr. PC. Earlier on MCACT the documents have been taken on record and the discrepancies were found there was no reply of the owner of the vehicle and in the superdginama of vehicle FIR as well as in the MACT claim, yet this error of judgment, which could have corrected on objection by the Prosecution when taken cognizance of earlier and more particularly no malafide intention has been found against applicant, a simple error of judgment or mere negligence would not amount to misconduct to entail any punishment.
7. Resultantly, for the foregoing reasons, OA is allowed. Impugned orders are set aside. Respondents are directed to restore to applicant his withheld increment with arrears and also treat the period of suspension as spent on duty for all purposes, within a period of three months from the date of receipt of a copy of this order. No costs.
(Dr. Veena Chhotray) (Shanker Raju) Member (A) Member (J) San.