Central Administrative Tribunal - Delhi
Pawan Kumar vs Govt. Of Nct Of Delhi on 19 December, 2012
Central Administrative Tribunal Principal Bench OA No.3873/2011 New Delhi, this the 19th day of December, 2012 Honble Mr. George Paracken, Member (J) Honble Mrs. Manjulika Gautam, Member (A) Pawan Kumar Sub-Inspector No.D/3514, E-Block Security Lines, Delhi S/o Shri K.C. Verma, R/o C-42, Surajmal Vihar, Delhi-110092 .Applicant (Through Shri Bhawani Shankar Sharma, Advocate) Versus
1. Govt. of NCT of Delhi Through its Chief Secretary, Delhi Secretariat, I.P. Estate, New Delhi-110002
2. The Commissioner of Police, Delhi Police Head Quarters MSO Building, IP Estate, New Delhi-110002
3. Joint Commissioner of Police (Security) Main Security Lines, Near Ashoka Hotel, Chanakya Puri, New Delhi
4. Deputy Commissioner of Police Security (OPS) Main Security Lines, Near Ashoka Hotel, Chanakya Puri, New Delhi
5. The Enquiry Officer, ACP Delhi High Court Security, Main Security Lines, Near Ashoka Hotel, Chanakya Puri, New Delhi .Respondents (Through Shri Amit Anand, Advocate) Order Mrs. Manjulika Gautam, Member (A) This OA has been filed by the applicant seeking the following reliefs:
quash and set-aside the impugned orders of punishment bearing no. 2826-2844/HAP/Sec. (P)-1Bn. Dated 15.02.2011 (Annexure A-1), passed by respondent No. 4, with all consequential benefits of pay, seniority, increment, promotion etc. quash and set aside the impugned Order no. 83-85/Appeal Cell/Jt.CP/Sec. dated 20.07.2011 (Annexure A-2) passed by respondent No. 3, with all consequential benefits of pay, seniority, increment, promotion etc. quash and set aside the findings drawn by respondent no.5, the enquiry officer served upon the applicant vide no. 21234/HAP/Sec.(P-1/Bn) dated 23.12.2010 (Annexure A-3), for all intent and purposes.
Pass any other order (s), in favour of the applicant which this Honble Tribunal may deems fit and proper under the facts and circumstances of case as well as in the interest of justice.
2. Brief facts of the case are that FIR No.488/2002 under Sections 376/34 IPC was registered at Police Station Prashant Vihar, Delhi and investigation was handed over to the applicant herein, working on the post of Sub Inspector in Delhi Police since 31.01.1994. At the time of registering of aforesaid FIR, the applicant was posted at Police Station, Prashant Vihar. After investigating the matter, he filed charge sheet in the concerned court on 4.01.2003. The trial was completed and the accused persons were acquitted vide order dated 2.07.2005 of Additional Sessions Judge Shri N.K. Gupta. The applicant was issued a show cause notice dated 12.05.2006 by Additional DCP (East) on the allegation that on perusal of the acquittal report in case FIR No.488/2002, deficiencies were found against the applicant regarding the address of the prosecutrix Smt. Neelam, who was allegedly reported to be untraceable. It was further alleged in the show cause notice that on inquiry conducted by ACP, CAW Cell, NW District, it was found that the prosecutrix Smt. Neelam Saini was not produced in the court and the charges could not be established against the accused persons because of lack of her evidence. Reference was also made to an affidavit dated 9.10.2002 allegedly filed by the prosecutrix in the court of District & Sessions Judge, where she has given her permanent address as Village & PO Gehri Mandi, Tehsil. Guru Jhandiala, Distt. Amritsar, Punjab. Copy of show cause notice is placed at Annexure A-4. The applicant made a request dated 1.06.2006 stating that since the case was more than four years old, he should be allowed to go through the case file in order to submit his reply. He made a similar request on 4.07.2006 also. There was no response to his request and vide order dated 18.07.2007 (Annexure A-6), the respondents withdrew the show cause notice on administrative grounds. The applicant filed OA No.2617/2008 seeking quashing of the show cause notice and initiation of DE proceedings against him but the same was dismissed vide order dated 30.07.2009 since the show cause notice had already been withdrawn. On the same charge mentioned in the show cause notice, departmental inquiry was initiated against the applicant. Memorandum dated 8.11.2008 was served on the applicant along with summary of allegations, list of witnesses and list of documents. After recording of prosecution evidence, the charge was issued in the DE proceedings on 20.05.2010. The applicant replied to the charge on 16.07.2010. The inquiry officer completed the inquiry and a copy of findings was served on the applicant on 23.12.2010. The applicant filed a representation against the findings of the inquiry officer dated 18.01.2011 but vide impugned orders dated 15.02.2011, the disciplinary authority imposed the punishment on the applicant. The applicant filed an appeal dated 28.02.2011 and the appellate authority passed orders dated 20.07.2011 modifying the punishment of withholding of one increment for a period of one year permanently to that of withholding of one increment for a period of one year temporarily (Annexure A-2). Aggrieved, the present OA has been filed.
3. Several grounds have been taken by the learned counsel for the applicant in support of OA. It is his contention that inquiry officer wrongly proved the charge without any evidence against the applicant and without taking cognizance of the defence evidence and defence statement submitted by the applicant. The evidence given by PWs is formal in nature and has failed to connect the applicant with the charge. It is also alleged by the learned counsel for the applicant that the findings of the inquiry officer are non-speaking and there has been non-application of mind. It is further stated that PWs-3 and 4 had conducted the PE against the applicant and, therefore, they should not have been brought in as witnesses. PW-7 has also categorically denied the existence of any affidavit of the prosecutrix in the judicial file. PWs-3 and 4 have also denied having seen any affidavit either on the police file or judicial file. Thus, the inquiry officer reached to his conclusion without any basis. The Additional Sessions Judge in his judgment has also not made any observations against the applicant. It is the contention of the learned counsel for the applicant that there is no evidence on record to prove that the alleged affidavit of the prosecutrix was filed in the Trial Court. The applicant also was not provided documents he had requested for to file reply to the show cause notice. It is also the contention of the applicant that he was merely an investigating officer and after filing of the challan, he becomes functus officio. It is the case of the prosecution that alleged affidavit was introduced during the trail and not during investigation. Also different dates of the affidavit have been mentioned in different documents. In support of his claim, the applicant has relied on the following:
(i) Kuldeep Singh Vs. The Commissioner of Police & ors., JT 1998 (8) SC 603 wherein the Honble Supreme Court held that if the finding of guilt is based on no evidence, it would be a perverse finding and would be amenable to judicial scrutiny.
(ii) Anil Kumar Vs. Presiding Officer and others, 1985 (3) SLR 26 wherein the Honble Supreme Court observed that the report of the enquiry officer must be reasoned.where no evidence is discussed, it does not amount to enquiry report.
(iii) Kashinath Dikshita Vs. Union of India, AIR 1986 SC 2118 where the Honble Supreme observed that the appellant was entitled to have an access to the documents and statement throughout the course of the inquiry..he would have needed the copies of the documents to enable him to effectively cross-examine the witnesses with reference to the contents of the documents. It is obvious that he could not have done so if copies had not been made available to him;
(iv) Surya Prakash Varshney, Junior Engineer Vs. Union of India and others, 1980 (3) SLR 64;
(v) Shri J.S. Gulati Vs. Improvement Trust Ludhiana and others, 1983 (2) SLR 100 where the Honble High Court of Punjab and Haryana held that it is incumbent for the inquiry officer to apply his mind and to discuss the evidence in support of his conclusions; mere conclusion without discussing evidence is improper; and
(vi) N.R. Varadarajan Vs. Senior Deputy Director General, AMSE Wing, Geological Survey of India and another, OA 1012/1988 decided by the Bangalore Bench of the Central Administrative Tribunal wherein it was held that non-supply of the copies of the relevant documents, if requested by the delinquent, amounts to denial of reasonable opportunity.
4. In the counter affidavit filed by the respondents, it has been clarified that the show cause notice issued to the applicant was withdrawn so that a regular departmental inquiry could be initiated against the applicant. The case of the respondents is that it is obligatory on the part of the investigating officer to collect permanent address of victim as well as accused and witnesses so that they do not disappear during the trial. In the present case, the applicant did not do so and this resulted into the accused being acquitted of the charge due to non-appearance of the prosecutrix in the trial court. Both PWs 3 and 4 have deposed regarding availability of affidavit dated 9.10.2002 filed by the prosecutrix in which her permanent address was given but the investigating officer made no efforts either to get permanent address from the affidavit or to get the summons issued at that address. Thus the respondents have rightly proceeded against the applicant and punishment as modified by the appellate authority has been given to him.
5. We have heard both the learned counsel and perused the record on file. We have also seen the record produced by Delhi Police regarding the proceedings against the applicant.
6. The applicant was charged with the following allegation:
It is alleged that SI Pawan Kumar No. D-3514 while posted at PS Prashant Vihar investigated Case FIR No. 488/02 u/s 376/34 IPC PS Prashant Vihar Delhi. He did not mention the permanent address of the prosecutrix in the police file as well as in the charge sheet. Though presecutrix Smt. Neelam Saini filed an affidavit in the court on 09/10/2000 in which she has given her permanent address as Village and Post Garhi Mandi Tehsil Guru Jhandiala Distt Amritsar Pubjab. IO also did not make efforts to get issue summons from the court for the permanent address of Prosecutrix. As a result of which she has been shown untrace and ultimately the accused persons got undue relief and were acquitted. A Show Cause Notice was issued to SI Pawan Kumar but he did not replied the same conclusively despite sufficient time was given to him.
7. In the inquiry conducted by the inquiry officer, seven PWs have been produced. According to the defence statement of the applicant, prosecutrix had given her residential address at Delhi which was mentioned in the case diary and the charge sheet and no other address was given by her during investigation or even in her statement under Section 164 Cr.PC. The applicant has also stated that he did not know of the permanent address of the prosecutrix which is mentioned in the affidavit dated 9.10.2002. There is no evidence proving the existence of such an affidavit as PWs 3 and 4 have stated that they have not seen the affidavit and PW-7, LDC, Record Room, Tis Hazari Court has also substantiated that there is no original affidavit on record, filed by the prosecutrix. Thus, according to the applicant, neither the existence of the affidavit nor the fact that he had knowledge of the affidavit and the address given in it, has been proved in the inquiry. After mentioning of the issues raised by the applicant in the defence statement, the inquiry officer has merely recorded the following:
In view of the above facts and discussion, it has been established that the defaulter did not make sincere efforts to obtain the permanent address of the prosecutrix and did not make efforts to get issue summons from the court on the permanent address of the prosecutrix and also did not reply conclusively despite sufficient time was given to him to show cause notice for censure.
8. Coming to the order of the disciplinary authority, the operative part of it reads as follows:
Assessing totality of all the facts and circumstances of the case, it is established that the delinquent SI failed to mention the permanent address of the prosecutrix in the police file as well as in the charge sheet as a result of which she has been shown untraced and ultimately accused persons got undue relief and were acquitted. My experience with police station working, indicate that this kind of omission is a deliberate effort on the part of investigating officer. I.O. is fully aware of the repercussion of this lapse. Most of the victims as well as accused persons are migrants and not permanent residents of Delhi. Hence, it becomes obligatory on the part of I.O. to collect permanent address of both victim as well as accused, so that they do not disappear during trial. In the present case, delinquent SI has done the same omission causing miscarriage to justice. Hence, I find no reason to differ with the conclusion of the E.O. who proved the charge against him vide his findings. Therefore, I am constrained to award a punishment of withholding of one increment for a period of one year permanently to SI (Exe) Pawan Kumar No. D/3514 for this lapse.
9. The appellate authority has merely agreed with the inquiry officer and the disciplinary authority but taking into consideration totality of facts of the case and to meet the ends of justice, has modified the punishment of withholding of one increment for a period of one year permanently to that of withholding of one increment for a period of one year temporarily.
10. The allegation against the applicant is that in spite of the existence of affidavit dated 9.10.2002 filed by the prosecutrix, the applicant did not make efforts to issue summons from the court at the permanent address given by her. The applicant has categorically denied having knowledge of such an affidavit and in the inquiry itself, the witnesses have not been able to prove the existence of the same. Another fact to be noted is that in various orders of the respondents, the date of the affidavit is differently given but for the purposes of this OA, we take that the date of the affidavit is 9.10.2002. We had occasion to see copy of the affidavit which was available in Delhi Police file shown to us. A perusal of the affidavit dated 9.10.2002 does not clarify whether the document has been filed in the court or not. It is merely sworn by the Oath Commissioner.
11. Keeping all the facts in mind, we are of the view that the applicant has been charged that in spite of the affidavit dated 9.10.2002 which was filed in the court and which gave permanent address of the prosecutrix, the applicant as investigating officer, did not make efforts to get the summons issued at that address. On the basis of the evidence in the inquiry, the existence of the above mentioned affidavit has not been proved conclusively and yet the charge has been found proved by the inquiry officer. Looking at the observations of the disciplinary authority, we find that he states that it is a deliberate omission on the part of the investigating officer and that his experience with police station working indicates that this kind of omission is generally done. The appellate authority has also observed that It is obligatory on the part of the Inquiry Officer to collect permanent address of both the victims as well as accused persons during the investigation itself, so that one does not disappear during the trial.
12. We are constrained to observe that the observations of the disciplinary authority as well as the appellate authority are not in consonance with the charge leveled against the applicant i.e. of not taking cognizance of the affidavit dated 9.10.2002. We are not satisfied that the charge as stated in the statement of imputations is proved by the inquiry officer and we feel that while imposing punishment and deciding the appeal, the minds of the disciplinary authority and the appellate authority have been colored by the fact that it was the duty of the investigating officer to find the permanent address of the accused or the prosecutrix and by not having done so, the applicant has committed a grave omission but unfortunately, the language of the summary of allegations speaks otherwise.
13. We, therefore, hold that the charge that has been levied against the applicant has not been proved and, therefore, the impugned orders dated 15.02.2011 and 20.07.2011 cannot be sustained. They are hereby quashed and set aside. The respondents are, however, at liberty to amend the charge and proceed, if so advised. OA is accordingly allowed.
( Manjulika Gautam ) ( George Paracken ) Member (A) Member (J) /dkm/