Central Administrative Tribunal - Delhi
Inspector Brijesh Namboori vs The Commissioner Of Police on 20 April, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, NEW DELHI O.A.NO.1539 OF 2013 This the 20th day of April 2015 CORAM: HONBLE SHRI SUDHIR KUMAR, ADMINISTRATIVE MEMBER & HONBLE SHRI RAJ VIR SHARMA, JUDICIAL MEMBER . Inspector Brijesh Namboori, No.D/2985 (PIS No.16900031) 4th Bn. DAP, Kingsway Camp, New Delhi . Applicant (By Advocate: Mr.Gyanender Singh) Vs. 1. The Commissioner of Police, PHQ, MSO Building ITO, IP Estate, New Delhi 2. The Dy.Commissioner of Police, North East District, Delhi. 3. The Joint Commissioner of Police, South Eastern Range, Delhi . Respondents (By Advocate: Ms.Renu George) ORDER Raj Vir Sharma, Member(J):
We have perused the pleadings and have heard Mr.Gyanender Singh, learned counsel appearing for the applicant, and Ms.Renu George, learned counsel appearing for the respondents. We have also perused the relevant departmental file produced by Ms.George, learned counsel appearing for the respondents.
2. In this Original Application, the applicant has prayed for the following relief(s):
A. Quash and set aside the Impugned Appellate Order No.3729-33/SO/SER(AC-II) New Delhi dated 23.10.2012 whereby the appeal of the applicant has summarily been rejected by the Appellate Authority.
B. Quash and set aside the Impugned Disciplinary Authority Order No.11773-87/HAP/NE(P-I) dated Delhi, the 18.8.2011, whereby the penalty of censure was confirmed upon the applicant by a non-speaking order, even without appreciating and disposing of the contentions raised by the applicant in his reply to the show cause notice dated 14.6.2011.
C. Quash and set aside the show cause notice No.8245-46/HAP/NE dated 14.6.2011.
D. Any other relief, which this Honble Tribunal may deem fit and proper in the circumstances of the case.
3. Brief facts: The applicant is an Inspector in Delhi Police. While he was working as SHO, PS Karawal Nagar, DD No.10-A dated 19.2.2011, PS Karawal Nagar (Annexure A/4) was made on the basis of PCR Call/information about the incident of theft of a Maruti Car bearing No.DL 3CM 9984, Golden Colour, at Babu Nagar. The complainants mobile phone number was noted as 9990278767. Thereafter, one SI Dheerender Sabah and Constable Vikas departed to the place of incident. After their return to the Police Station, they recorded DD No.49-B, dated 19.2.2011 at 8.30 P.M. (Annexure A/5) that complainant Haider Ali, s/o Salimuddin, R/o C-427, Gali No.6, Babu Nagar, told them that he had parked the said Maruti Car outside his house and the same had been found missing, and that he himself was searching for the same and would subsequently give his statement in connection with the theft. The said complainant appeared at the Police Station and gave his statement on 16.3.2011 when the case FIR No.71/11, dated 16.3.2011, under Section 379 IPC (Annexure A/6), was registered in respect of the said theft of Maruti Car.
3.1 On perusal of the case FIR 71/11 dated 16.3.2011 (ibid), the Deputy Commissioner of Police, North East District, Delhi, vide order dated 19.3.2011, called upon the applicant to explain the delay in registration of the FIR. The applicant in his explanation dated 3.4.2011 stated as follows:
It is submitted that on received a D.D.No.10A dated 19.02.11 was made by the one Haider Ali s/o Mohd. Salim R/o C-427 Gali No.6/7 Babu Nagar Mustafabad Delhi about the theft of his Maruti Car (800) No.DL-3CM-9984 from gali in front of his house which was registered in name of his maternal uncle namely Raj Mohammad. Complainant was asked to report to Police Station again and again for his statement but stated that he is busy in his brother and sisters marriage and he will report to PS after said marriage programme. Later on complainant came to PS on 16.3.2011 and gave his statement about the incident. Case FIR No.71/11 Dated 19.02.11 u/s 379 IPC was registered on his statement without any delay. However in future directions of Sr.officers for register the case without any delay will be complied strictly. 3.2 The Deputy Commissioner of Police, North-East District, Delhi, having found the applicants explanation as unconvincing, issued a show-cause notice dated 14.6.2011 (Annexure A/3) calling upon the applicant to show cause as to why his conduct should not be censured for the lapse mentioned therein. For the purpose of clarity, the contents of the show-cause notice dated 14.6.2011 (ibid) are reproduced below:
SHOW CAUSE NOTICE An explanation of Inspr. Brijesh Namboori, No.D/2985 was called vide this office No.4242-43/HAP/NE dated 19.3.2011 for his grave misconduct, negligence, carelessness and dereliction in the discharge of his official duties in that on perusal of case FIR No.71/11 dated 16.3.2011 u/s 379 IPC, PS Karawal Nagar, the undersigned observed that the incident of theft of the vehicle Maruti 800 bearing No.DL 3CM 9984 took place on 19.2.2011 but the case has been registered on 16.3.2011 after lapse of 25 days. This is clear cut violation of instruction issued by worthy CP to register the case as and when it is reported without any delay and the investigation be carried out.
The U.O. for explanation was served upon him. He has submitted his written reply in response to the U.O. I have perused written reply of Inspr. Brijesh Namboori, No.d/2985. The reply is not found satisfactory.
The above act on the part of Inspr. Brijesh Namboori, No.D/2985 amounts to grave misconduct, negligence and carelessness in discharge of official duties.
He is, therefore, called upon to show cause as to why his conduct should not be censured for this lapse. His reply, if any, should reach this office within 07 days from the date of receipt of this notice failing which it will be presumed that he has nothing to say in his defence and the matter will be decided ex parte on merit. 3.3 The applicant filed his written reply dated 4.8.2011 which is reproduced below:
Subject:- Reply of Show Cause Notice.
Respected Sir, Kindly refer to your office endorsement letterno.8245-46/HAP/NE (P-I) dated 14.062011 on the subject cited above.
It is further submitted that the case FiR No.71/11 Dt.16.3.11 PS Karawal Nagar had been registered on the very same day when it was reported to the police for the first time by the complainant Haider Ali S/o Mohd. Salim and investigation was taken up by SI Dhirender without any delay. There is no violation of instructions of worthy CP taken place while registering the case. It clearly shows that there is no violation and carelessness found on my part in discharge of official duties.
It is therefore requested that show cause notice served upon me may please be filed. 3.4 The Deputy Commissioner of Police, North East District, Delhi, passed the order dated 18.8.2011 (Annexure A/2) confirming the show cause notice and censuring the conduct of the applicant. The order dated 18.8.2011 (ibid) reads thus:
ORDER A show cause notice for censure issued t Inspr. Brijesh Namboori, No.D/2985 (PIS NO.16900031) vide this office No.8245-46/HAP/NE dated 14.06.2011 for his grave misconduct, negligence, carelessness and dereliction in the discharge of his official duties in that on perusal of case FIR No.71/11 dated 10.3.2011 u/s 379 IPC PS Karawal Nagar, the undersigned observed that the incident of theft of vehicle Maruti 800 bearing No.DL 3CM 9984 took place on 29.2.2011 but the cawse has been registered on 16.3.2011 after lapse of 25 days. This is clear cut violation of instruction issued by worthy CP to register the case as and when it is reported without any delay and the investigation be carried out.
The above act on the part of Inspr. Brijesh Namboori, No.D/2985 amounts to grave misconduct, negligence and carelessness in discharge of official duties.
The show cause notice for censure was served upon him. He has submitted his written reply in response to the show cause notice for censure. I have perused the reply submitted by Inspr. Brijesh Namboori, No.D/2985, which is not found satisfactory. Wrothy CP/Delhi himself gave personal directions to all SHOs on 10.11.2010 itself. But despite that directions were not followed and inordinate delay was found in registration of MV theft cases. So there is no ambiguity in this regard the fact of immediate registration is well in the knowledge of SHO. Now it is paramount duty of SHO to monitor the all PCR calls as well as the DD entry on daily basis. From mere perusal of the case there are gross inordinate delay in registration of M.V. theft case to the time of 25 days. I have no reason to take lenient view. Therefore, show cause notice for censure issued to Inspr. Brijesh Namboori, No.D/2985 is confirmed and his conduct is censured.
A copy of this order be given free of cost. He can file an appeal to the Joint CP/NDR, New Delhi against this order within 30 days from the date of receipt of this order on a non-judicial stamp paper worth Re.00.75 paise by enclosing a copy of this order, if he so desires. 3.5 Being aggrieved by the above censure order dated 18.8.2011, the applicant filed appeal dated 8.10.2011 (Annexure A/7) which reads thus:
Subject:- Appeal against order No.11773-87/HAP/NE (P-I) dated Delhi the 18.08.11 confirming the show cause notice for censure:
Respected Sir, It is submitted that a show cause notice for censure was issued to me vide letter No.8245-46/HAP/NE(P-I) dated Delhi the 14.06.11 alleging that I had not performed my official duty with due care and attention in connection with Fir No.71/11 Dt.10.3.11 u/s 379 IPC PS Karawal Nagar, as the incident of theft of Maruti car took place on 19.02.11 but the case has been registered on 10.03.11 after lapse of 25 days. In this regard, it is submitted that on 19.02.11 a PCR call vide DD No.10A was received at Police Station regarding theft of Maruti Car which was marked to SI Dhirender for necessary action. On his arrival vide DD No.42B Dt.19.02.11 SI Dirender mentioned that he met the owner of the stolen car M.Haider Ali who tried to search his vehicle on his own and did not make his statement. So he kept the call pending. SI Dhirender also told me the above facts.
On 16.03.11 complainant came at Police station and gave written complainant regarding the theft of Maruti car a case FIR No.71/11 was registered on the same day.
I used to brief all the IOs time to time to register the case of MV theft immediately when information reached at PS. These are the facts of the case even then the punishment of censure has been awarded to the appellant contrary to the natural justice, as there is no fault on my part.
Keeping in view of above mentioned facts and circumstances, it is humbly requested that the order confirming the show cause notice may please be vacated and I may kindly be given an opportunity to explain my version to worthy Jt/CP. 3.6 The applicants appeal dated 8.10.2011 was rejected by the Joint Commissioner of Police, South Eastern Range, Delhi, vide his order dated 23.10.2012 (Annexure A/1),the relevant portion of which is reproduced below:
Following the appeal, I have heard the appellant in O.R. He has stated nothing new to add to what he has already submitted in his appeal. I have gone through the appeal preferred by the appellant and the other file records and found that despite clear cut directions, the case was registered after a delay of 25 days which is not acceptable. Therefore, I do not find any reason to interfere with the orders of the Disciplinary Authority. Hence the appeal is rejected. 3.7 Hence, the applicant has filed the present O.A. seeking the reliefs as aforesaid.
3.8 The applicant has mainly contended that the disciplinary and appellate authorities have failed to consider the pleas raised by him in his written reply and appeal, and have passed unreasoned and non-speaking orders with a view to punish him. It has also been contended by the applicant that on the very day when the complainant appeared at the Police Station and gave his statement, the FIR was registered, and that there being no delay in the registration of FIR, the question of flouting the orders of the higher authority regarding registration of the FIR in MV theft case did not arise.
4. Opposing the O.A., the respondents have filed a counter reply wherein it has, inter alia, been stated that directions were issued by the Commissioner of Police, Delhi, to all SHOs on 10.11.2010 to register case and carry out investigation at once as and when it is reported. It was the duty of the applicant as SHO, PS Karawal Nagar, to register the case of theft of motor vehicle at once on receipt of PCR call/information and to carry out investigation. In view of the admitted fact that the PCR call/information was received at the Police Station on 19.2.2011 and the FIR was registered on 16.3.2011, i.e., after a delay of 25 days of receipt of information, the applicants plea that the complainant took time to appear and give statement was rightly not accepted by the disciplinary and appellate authorities.
5. No rejoinder reply has been filed by the applicant.
6. Mr.Gyanender Singh, learned counsel appearing for the applicant, took us through the show cause notice, the DD No.10-A dated 19.2.2011, the DD No.49-B dated 19.2.2011, the FIR dated 16.3.2011, and the applicants appeal dated 8.10.2011, and argued that both the orders passed by the disciplinary and appellate authorities suffer from non-consideration of the relevant facts and the pleas raised by the applicant in his appeal. It was also argued by the learned counsel that there was absolutely no delay because the complainant himself appeared and made statement on 16.3.2011 that due to marriage programmes of his sister and brother held on 19.2.2011 and 21.2.2011 and for some family problems, he could not get the case registered earlier. As the applicants pleas and the said statement of the complainant were ignored by the disciplinary and appellate authorities, the impugned orders are vitiated and liable to be quashed. In support of his contentions, Mr.Singh invited our attention to the decision of the coordinate Bench of the Tribunal in Sanjiv Gupta v. Government of NCT of Delhi through its Chief Secretary & others, OA No.2346 of 2011, wherein it has been held that any order that may visit a citizen with adverse consequences has to be passed after due application of mind and by a process of reasoning rejecting the defence that may be projected by him. Mr.Singh also laid emphasis on the following observation made by the Tribunal in the aforesaid case:
5. Before we may part with this order, we may mention that 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 promotion. That being so, while proposing to visit a police officer with the penalty of censure, the concerned authority is to give serious thought.
7. Per contra, Ms.Renu George, learned counsel appearing for the respondents, submitted that on the face of the clear direction issued by the Commissioner of Police, Delhi, to register case and carry out investigation at once on receipt of PCR call/information, more particularly in a case of theft of motor vehicle, and in view of the admitted facts that the detailed information about the theft was obtained from the complainant on 19.2.2011 and that the FIR was registered on 16.3.2011, i.e., after a delay of 25 days, the appearance of the complainant and his giving statement on 16.3.2011, i.e., the date of registration of the FIR, cannot be said to be plausible reasons for the said delay. The disciplinary and appellate authorities, after considering the materials available on record including the applicants written reply and appeal, and upon hearing the applicant, have passed the orders. The procedure prescribed under the relevant rules having been duly complied with and the conclusions having been arrived at by the disciplinary and appellate authorities on the basis of materials available on record, there is no scope for interference in the matter.
8. We have carefully considered the facts and circumstances of the case. Admittedly, the PCR call/information about the theft of the motor vehicle was received by the Police Station on 19.2.2011 and the FIR was registered on 16.3.2011, i.e., after a delay of 25 days. On 19.2.2011 one Sub Inspector and Constable also visited the place of incident and obtained the detailed information from the complainant. Hence, the FIR should have been registered on 19.2.2011 itself when directions were issued by the Commissioner of Police, Delhi, to all SHOs to register case and carry out investigation at once on receipt of PCR call/information, more particularly in a case of theft of motor vehicle. Though the applicant has not produced before this Tribunal a copy of his written reply to the show cause notice, yet the same is available on the departmental record. The said written reply was filed by the applicant on 4.8.2011, the contents whereof have been reproduced in paragraph 3.3 above. In his written reply dated 4.8.2011, the applicant has not stated about the fact that the complainant was unable to appear at the Police Station and give his statement due to the marriage programmes of his brother and sister. In fact, the applicant had stated about the said fact in his explanation dated 3.4.2011, which is available on the departmental file. The applicant has not produced copies of the DD entries in support of his statement that after 19.2.2011 the complainant was contacted again and again to appear at the Police Station and give his statement for registration of the case, but he failed to respond. The disciplinary authority was not satisfied with the said explanation given by the applicant, and accordingly he issued show-cause notice. In the show cause notice, the disciplinary authority has referred to the order calling upon the applicant to explain the delay in question. The disciplinary authority, after going through the relevant record and considering the applicants reply to the show-cause notice, has passed the order dated 18.8.2011 censuring the conduct of the applicant for negligence and dereliction in the discharge of his duties. Thus, it cannot be said that the disciplinary authority has not considered the pleas taken by the applicant in his written reply to the show cause notice. As regards the order dated 23.10.2012(ibid) rejecting the applicants appeal, the appellate authority, after going through the appeal and the relevant records, has upheld the order passed by the disciplinary authority. Having given our anxious consideration to the facts and circumstances of the case and the rival contentions of the parties, we do not find that the conclusions reached by the disciplinary and appellate authorities are perverse, being based no evidence, or contrary to materials available on record.
9. 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.
10. 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."
11. 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.
12. 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.
13. 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".
14. 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..
15. In the instant case, Shri Gyanender Singh, learned counsel for the applicant, could not point out anything showing that the procedure for imposition of minor penalty of Censure has not been followed by the disciplinary authority in the case of the applicant.
16. As regards the decision in Sanjiv Gupta v. Government of NCT of Delhi through its Chief Secretary & others (supra), cited by the learned counsel appearing for the applicant, it was found by the coordinate Bench of the Tribunal in the said case that though the concerned Police Station had received the information about the theft of a motor cycle, yet because the registration number of the motor cycle was not disclosed in the said information, the FIR could not be registered. It was also found that the complainant had submitted in writing that he did not want to pursue the case, and that further information would be provided by him as soon as the same was made available. Only after the registration number and other relevant particulars of the motor cycle were furnished by the complainant, the FIR was registered. It was also found by the Tribunal that the departmental authorities dropped the disciplinary proceedings initiated against the concerned Sub Inspector, who was dealing with the complaint, only by issuing a warning and, therefore, there was no reason as to why different treatment should be meted out to the applicant who was the SHO of the Police Station. On the above findings and in view of the fact that the orders were passed by the disciplinary and appellate authorities without considering the aforesaid pleas raised by the applicant, the Tribunal remitted the matter to the disciplinary authority to re-visit the show-cause which was issued to the applicant. The facts and circumstances of Sanjiv Guptas case (supra) are different from that of the present case. In the instant case, the registration number of the motor vehicle was clearly mentioned in the PCR call/information dated 19.2.2011, and the Sub Inspector and the Constable, who visited the place of incident, also collected all the relevant information from the complainant on 19.2.2011. The complainant did not give in writing that he did not want to pursue the case. The registration of the FIR was delayed by 25 days. The applicants plea that FIR could be registered on the date of complainants appearance at the Police Station and his giving statement was considered and rejected by the disciplinary and appellate authorities. In view of these distinguishing features appearing in the present case, the decision in Sanjiv Guptas case (supra) is of no help to the applicant.
17. On a perusal of the orders passed by the disciplinary and appellate authorities, we have found that both the said authorities have gone through the relevant disciplinary proceedings record which, inter alia, contained the order dated 19.3.2011 issued by the Deputy Commissioner of Police, North East District, Delhi, calling upon the applicant to explain the delay in registration of the FIR No.71/11; the explanation dated 3.4.2011 submitted by the applicant thereto; the show-cause notice dated 14.6.2011 issued by the Deputy Commissioner of Police, North East District, Delhi; the applicants written reply dated 4.8.2011; the censure order dated 18.8.2011; the applicants appeal dated 8.10.2011; the FIR No.71/11 dated 16.3.2011; the DD Nos.10-A and 49-B dated 19.2.2011. Thus, it cannot be said that the disciplinary and appellate authorities have failed to apply their mind to the pleas raised by the applicant in his written reply and appeal, while passing the impugned orders. We are, therefore, not inclined to accept the contention of the learned counsel appearing for the applicant that the order passed by the appellate authority is liable to be struck down as it does not indicate any of the applicants pleas to have been considered by the appellate authority. This view of ours is fortified by the decision of the Honble Supreme Court in State Bank of Bikaner & Jaipur & Ors vs Shri Prabhu Dayal Grover, AIR 1996 SC 320: (1995) 6 SCC 279.
18. Having examined the facts and circumstances of the case and the rival contentions of the parties in the light of the decisions of the Honble Supreme Court referred to in paragraphs 9 to 14 above, we have found no scope for interference in the matter.
19. In the light of the above discussions, we hold that the applicant has not been able to make out a case for the reliefs claimed by him. The O.A. being devoid of merit is liable to be dismissed.
20. Accordingly, the O.A. is dismissed. No costs.
(RAJ VIR SHARMA) (SUDHIR KUMAR) JUDICIAL MEMBER ADMINISTRATIVE MEMBER AN