Central Administrative Tribunal - Delhi
Asi Om Prakash vs Commissioner Of Police on 31 January, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No.2471 of 2008 With O.A.No.2548 of 2009 New Delhi this the 31st day of January 2011 Honble Shri Shailendra Pandey, Member (A) Honble Dr. Dharam Paul Sharma, Member (J) OA No.2471 of 2008 ASI Om Prakash, Age 52, S/o Late Sh. Sat Narain Yadav, R/o RZ-10/B, Gali No.6, Dada Chhatriwala Marg, Raj Nagar-I, Palam Colony, New Delhi-45. .Applicant ( By Advocate Ms.Ritika Chawla for Shri Arun Bhardwaj) VERSUS 1. Commissioner of Police, PHQ, I.P. Estate, ITO, New Delhi. 2. Jt. Commissioner of Police, Southern Range, PHQ, I.P. Estate, ITO, New Delhi. 3. Deputy Commissioner of Police South West District, PHQ, I.P. Estate, ITO, New Delhi. .. Respondents (By Advocate : Shri R.N. Singh) O.A.No.2548 of 2009 SI Gyanender Rana, Age 40, S/o Shri C.B. Rana, R/o H.No.1707A, Sector-31, HIG, Gurgaon, Haryana .Applicant ( By Advocate Ms.Ritika Chawla for Shri Arun Bhardwaj) VERSUS 1. Commissioner of Police, PHQ, I.P. Estate, ITO, New Delhi. 2. Jt. Commissioner of Police, Southern Range, PHQ, I.P. Estate, ITO, New Delhi. 3. Deputy Commissioner of Police South West District, PHQ, I.P. Estate, ITO, New Delhi. .. Respondents (By Advocate : Shri Nilesh Kumar Singh for Mrs.Avnish Ahlawat) O R D E R Dr. Dharam Paul Sharma, Member (J) :
Both these OAs are directed against the same order of penalty of censure passed in the joint departmental inquiry against the two applicants herein on a common charge and as such have been heard together and are being disposed of by this common order.
2. A regular departmental inquiry was ordered vide order No.11930-57/HAP-II/SWD dated 22.9.2006 to be conducted against ASI Om Parkash, SI Gyanender Rana, ASI Satbir Singh and SI Sandeep Sharma. ASI Satbir Singh expired during the pendency of the inquiry. The remaining three were proceeded against on the following summary of allegations, a copy of which is at Annexure A/4, :-
It is alleged that ASI Omparkash No.1631/D (PIS No.28760016), SI Gyanender Rana No.D-3644 (PIS No.16003644), ASI Satbir Singh No.1550/D (PIS No.28750350) and SI Sandeep Sharma No.D/487 (PIS No.16970080), while posted at PS Najafgarh, entrusted the investigation of case FIR No.414 dated 19-08-2000 u/s 379 IPC & 39 I.E. Act was remain with you from 19-08-2000 to 31-01-01, 16-02-01 to 26-0702, 03.12.02 to 12.06.05 and 25.09.05 to 03.04.06 respectively. During their respective tenures, accused Virender s/o Sh. Chattar Singh R/o 81, Old Roshan Pura Najafgarh, New Delhi was not arrested by any of them in stipulated period though-the identity of the accused was never in doubt. As per provisions of section 468 CrPC, the period of limitation for taking cognizance of offence under Section 379 IPC & 39 of the Indian Electricity Act is only three years from the date of offence i.e. 19.08.2000. Accordingly, the limitation period expired on 19.08.2003. The challan of this case was prepared only on 08.06.2005 and was filed in the courts on 03.04.2006. Challan was put in court after almost 3 years, after the expiry of the prescribed time limit. The application before the Honble trial court for condonation of time delay was not forwarded by the appropriate authority. All the above mentioned IOs are responsible for perfunctory investigation for not arresting the accused in time and delay in investigation resulting time barred. Ulterior motive cannot be ruled out. SI Sandeep Sharma is responsible for unnecessary delay for about six months in putting up the case file in the court for trial even after preparation of challan.
The above act on the part of ASI Omparkash No.1631/D (PIS No.28760016), SI Gyanender Rana No.D-3644 (PIS No.16003644), ASI Satbir Singh No.1550/D (PIS No.28750350) and SI Sandeep Sharma No.487/D (PIS No.16970080), amounts to gross misconduct, negligence, which render them liable to be dealt with departmentally under the provision of Delhi Police (Punishment and Appeal) Rules 1980.
3. The disciplinary inquiry was initially entrusted to one Shri Suresh Chander Sharma, the then ACP P.G. Cell/SWD. However, when Shri Suresh Chander Sharma was transferred to PCR, the said disciplinary inquiry was entrusted to Shri Bharat Singh, Assistant Commissioner of Police, who after recording the evidence of prosecution witnesses, framed the charge against the applicants and SI Sandeep Sharma on the lines of summary of allegations and called upon the Charged Officials to submit their list of defence witnesses. The Charged Officials in their defence produced no defence witness but they submitted the written statement of defence. After due consideration of the same along with the evidence that has come on record during the inquiry, the inquiry officer returned the finding that the charge against the defaulters ASI Om Parkash and SI Gyanender Rana was partly proved to the extent that during the period from 19.8.2000 to 31.1.2001 (more than five months) and from 16.2.2001 to 26.7.2002 (more than one year and five months), they failed to arrest the accused person. The charge against the Charged Officials relating to the case having become time barred ona ccont of the applicants negligence was not established because the case has become time barred on 19.8.2003, i.e., at the time the investigation was pending with ASI Satbir Singh. The charge against SI Sandeep Sharma did not stand proved, as he was entrusted with the investigation of the case in question after it had already become time barred and the accused had already been granted anticipatory bail. A copy of the finding of the inquiry officer is at annexure A/3. The disciplinary authority tentatively agreed with the finding of the inquiry officer. Thereupon, a copy of the finding of the inquiry officer was served upon the defaulters ASI Om Parkash and SI Gyanander Rana on 2.11.2007 and 6.11.2007 respectively calling upon them to make their representations/submissions, if any, with regard to the finding of the inquiry officer within 15 days from the date of its receipt. Both the defaulters submitted their representations. Both the defaulters were also heard in O.R. After examining the DE files, including the statement of PWs and defence statements of defaulters, finding of the inquiry officer and representations of the defaulters, the disciplinary authority vide order dated 22.2.2008, as at Annexure A/1, censures the conduct of defaulters ASI Om Parkash and SI Gyanander Rana. While passing this order of penalty, the disciplinary authority, inter alia observed : The identity of the accused in this FIR was clearly established as Virender S/o Shri Chattar Singh r/o 81, Old Roshan Pura, Najafgarh and he is a permanent resident of Najafagarh itself. However, neither ASI Om Prakash nor SI Gyanender Rana were able to trace/arrest the accused. In his representation ASI Om Praksh has mentioned that he had made several attempts to trace the accused but the accused was reported to have gone to Rajasthan. His plea is not tenable that a person who is a permanent resident of Najafgarh and his family also resided there, cannot be traced if the I.O. really puts sincere efforts. Also if the accused had gone to Rajasthan, raids could have been conducted there but it was not done. The defaulter ASI also taken the plea of being over worked. This plea cannot be an excuse for not arresting the accused. Similarly, defaulter SI Gyanender Rana, No.D/3644 has pleaded in his representation that he was a new I.O. The instant case is a simple case of electricity theft where the identity of the accused was already established and he could easily have been arrested. The defaulter SI has pleaded that the accused was found absent from his place of work/residence. This is negated by the fact that the defaulter SI has himself mentioned in the case diaries that the accused used to visit the factory and was seen by many persons there. He has also pleaded being over worked. This cannot be a justification for not arresting an identified accused. From this it is evident that both the defaulters, ASI Om Parkash, No.1631/D and SI Gyanender Rana, No.D-3644 have failed to arrest the accused and finalize the investigation.
4. Both the Charged Officials have preferred appeals against the award of penalty of censure to them to the appellate authority as referred to above. The same, however, did not find favour with the appellate authority. His appeal was accordingly rejected. A copy of the order of the appellate authority is at Annexure A/2.
5. Feeling aggrieved, the Charged Officials have filed these Applications, challenging the correctness and legality of the impugned penalty order, appellate order and finding of the inquiry officer, as at Annexures A/1 to A/3 respectively and seeking quashing and setting aside of these orders/reports and declaration to the effect that the inquiry officer did not have any power to frame the list of witnesses, list of documents while conducting the departmental inquiry and also that the procedure specified in Rule 16 of Delhi Police (Punishment & Appeal) Rules, 1980 is ultra vires of the Constitution of India. In OA 2471/2008, the applicant Om Parkash has sought further directions to the respondents to promote him further as SI from the date his juniors have been promoted.
6. The applicants have taken a number of grounds in their respective Applications in support of their claim, as aforesaid, which can be classified into three categories, viz., (1) those relating to inordinate delay in investigation of the case resulting in the case becoming time barred; (2) those relating to conduct of investigation by them to the best of their abilities and inspite of due diligence and care, they were unable to arrest the accused, and (3) those relating to the applicants being pre-occupied and over-burdened with lot of other cases.
7. Since the charge against the applicants herein regarding the case becoming time barred on account of their act or omission was not proved and they have not been proceeded against on this account. The grounds taken under category (1) above are, therefore, not relevant to the issue involved in these Applications. Nevertheless, these have been reiterated by the applicants through out before the disciplinary authority as well as appellate authority and also in these proceedings.
8. It has thus been inter alia submitted by the applicants that the respondents have not applied their minds to the facts of the case and the impugned orders are perverse, suffering from non-application of mind and having been passed with malafide intention to spoil the career of the applicants. The applicants visited the factory premises where the accused was not available. The address of the accused as obtained from the factory was found to be wrong. The Khera Village address was not of much help as the people at Khera Village informed that the accused did not live in that village. After the raid of the factory, the factory remained closed and nobody was available. The efforts to locate the factory owner took quite a long time as the applicants were also bearing the load of a number of other cases to which they have to put due attention also, as pending complaints were meticulously monitored by the senior officers. Besides, inquests, FSL/CFSL and post mortem results also consumed lot of time. The evidence of court, attending courts for recording of statements u/s 164 Cr.P.C. and identification parades also kept the Charged Officials badly busy and they could find time to look into the pending investigation cases with difficulty regularly. With great efforts, they could locate the address of the accused but he was not found there. It was reported that the accused had gone to Rajasthan and staying with some of his known person. However, the exact location at Rajasthan could not be identified that is why the accused could not be arrested. There are a number of cases where the police official failed to arrest the accused persons. Therefore, no-arrest of an accused by itself would not amount to misconduct, as it had not been happened for the first time that the accused could not be arrested despite best efforts. In any case, it was not an intentional misconduct. The IO had conducted the inquiry with pre-determined mind and the procedures followed by under Rule 16 of the Delhi Police (Punishment & Appeal) Rules, 1980 are ultra vires which enable the inquiry officer to act as a judge as well as prosecutor, and also issuing the summary of allegations and list of documents etc. without any authority under the Rule. He was also allowed to ask questions to the witnesses. The rule is thus violative of the provisions of the Constitution of India, which guaranteed fair departmental proceedings in accordance with the principles of natural justice.
9. The respondents have controverted these contentions in their reply, claiming that the orders/report are legal, fair and justified and in accordance with the applicable rules. The applicants have been given a fair hearing by all the authorities concerned. The impugned orders clearly reflect the cogent reasons in support of the decision of the disciplinary authority as well as the appellate authority. The inquiry officer too has conducted the inquiry in accordance with the rules and it is seen that out of three Charged Officials, the inquiry officer returned finding against the two applicants herein but not against the third Charged Officials against whom the charge was held not to be proved. The plea that the disciplinary authority has proceeded with pre-determined mind is ex facie devoid of substance and not supported by any cogent material. Rule 16 of the Delhi Police (Punishment & Appeal) Rules, 1980 is valid and no case is made out against it by any stretch of imagination. The inquiry against the applicants cannot be said to be unfair in any manner.
10. In OA 2471/2008, the applicant filed rejoinder wherein averments made in the Application were reiterated.
11. At the hearing, the main thrust of the submissions made by the applicants counsel is two-fold viz., the applicants had made their sincere best efforts to arrest the accused and in spite of their best efforts, the accused could not be arrested. This by itself would not amount to misconduct, as there were number of other cases where the accused persons could not be arrested in spite of making best efforts for that purpose. The learned counsel for the applicants has drawn our attention in this regard to the Daily Diaries that have been recorded from which it can be seen that the applicants were regularly pursuing the matter with due diligence. Even the inquiry officer found merit in this contention when he observed in his report that As regards the charge against the first I.O. ASI Om Parkash is concerned, the investigation remained pending with him from 19.8.2000 to 31.1.01, and he had written 11 case diaries regarding investigation conducted by him. There is some weight in his plea that he conducted proper investigation and at the time when he handed over the case file, the case was not time barred. The learned counsel insisted that the case diaries be produced by the respondents as well as those recorded by SI Gyanender Rana from which it could be seen that they have made all efforts to apprehend the accused person. The learned counsel further submitted that the applicants were burdened with a number of other cases, which were being meticulously monitored by the senior officers. Within these constrains, the applicants have done their best. The efforts cannot be wiped out simply because the accused person could not be arrested.
12. Shri R.N. Singh, appearing on behalf of respondents in OA No.2471 of 2008 submitted that whether the applicant performed his duties satisfactorily or not is for the respondents to decide. The applicant might claim that he has performed his best, but that by itself is not enough. After taking into consideration all the facts and circumstances of the case as well as the submissions made by the applicant, the respondents are well within their right to hold their considered view that the applicants are responsible for perfunctory investigation for not arresting the accused in time. Shri Singh has taken us to the order of the disciplinary authority wherein that authority has given cogent reasons for censuring the conduct of the Charged Officials in the facts and circumstances of the case. A plain reading of the said order would reveal that the applicants were aware of the identity of the accused, his permanent address in Delhi as well as the fact that the accused person has gone to Rajasthan and staying with some known person, yet the applicants have not gone to Rajasthan and explored the possibility by conducting a raid there. Had it been done, the accused could have been arrested. Furthermore, SI Gyanender Rana has himself mentioned in the case Diary that the accused used to visit the factory premises which is seen by many persons there, yet, the learned counsel strongly contended, the accused had not been arrested by the applicants. After due consideration of all the relevant materials, the disciplinary authority came to the conclusion, and rightly so Shri Singh contended, that the applicants have exhibited negligence and lackadaisical attitude in connection with arrest of the accused person.
13. The respondents have provided the case diaries as well as the disciplinary inquiry file for our perusal. We have given our careful consideration to the respective submissions made by all the parties. We have also carefully perused the records of the case.
14. Before dealing with the case on merit, it would be appropriate to refer to the principles governing judicial review of the disciplinary matters as emerged from the case law on the subject. These principles very aptly summed up by the Honble Supreme Court in the case of High Court of Judicature at Bombay through its Registrar vs. Uday Singh and others, AIR 1997 SC 2286, as follows:-
It is settled law that the Tribunal has only power of judicial review of the administrative action of the appellate on complaints relating to service conditions of employees. It is the exclusive demain of the disciplinary authority to consider the evidence on record and to record findings whether the charge has been proved or not. It is equally settled law that technical rules of evidence have no application for the disciplinary proceedings and the authority is to consider the material on record. In judicial review, it is settled law that the Court or the Tribunal has no power to trench on the jurisdiction to appreciate the evidence and to arrive at its own conclusion. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. It is meant to ensure that the delinquent receives fair treatment and not to ensure that the conclusion which the authority reaches is necessary correct in the view of the Court or Tribunal, when the conclusion reached by the authority is based on evidence. Tribunal is devoid of power to reappreciate the evidence and would (sic) come to its own conclusion on the proof of the charge. The only consideration the Court/Tribunal has in its judicial review is to consider whether the conclusion is based on evidence on record and supports the finding or whether the conclusion is based on no evidence
15. It has further been observed by the Honble Supreme Court in the aforementioned case that:
the scope of enquiry is entirely different from that of criminal trial in which the charge is required to be proved beyond doubt. But in the case of disciplinary enquiry, the technical rules of evidence have no application. The doctrine of "proof beyond doubt" has no application. Preponderance of probabilities and some material on record would be necessary to reach a conclusion whether or not the delinquent has committed misconduct. The test laid down by various judgments of this Court is to see what there is evidence on record to reach the conclusion that the delinquent has committed misconduct and whether as a reasonable man, in the circumstances, would be justified in reaching that conclusion.
16. In Union of India & others vs. B.S. Srivastava, JT 1997 (8) SC 573, it has been held that this Tribunal would not be justified in its judicial review to sit in appeal over the decisions of the disciplinary authorities. The scope of judicial review of the decision taken by the disciplinary authority also came up for consideration before the Apex Court in the case of Union of India & Anr. vs. G. Ganayutham, 1998 (2) SLJ 102 (SC), wherein the Court examined the three grounds for judicial reviews, namely, reasonableness, rationality and proportionality with reference to English and Indian cases. The Court also examined how much margin of appreciation should be given while judicially reviewing a decision of an administrative authority. Referring to the Wednesbury Rule, the Apex Court observed :
According to Wednesbury case, while examining reasonableness of an administrative decision, the Court has to find out if the administrator has left out relevant factors or taken into account irrelevant factors. The decision of the administrator must have been within the four corners of the law, and not one which no sensible person could have reasonably arrived at, having regard to the above principles, and must have been a bona fide one. The decision could be one of many choices open to the authority but it was for that authority to decide upon the choice and not for the Court to substitute its view.
17. In Apparel Export Promotion Council vs. A.K. Chopra, JT 1991 (1) SC 61, it has been observed that the Court cannot substitute its judgment for that of administrative authority. Even though Judicial Review of administrative action must remain flexible and its dimension not closed, yet the Court in exercise of the power of judicial review is not concerned with the correctness of the findings of fact on the basis of which the orders are made so long as those findings are reasonably supported by evidence and have been arrived at through proceedings which cannot be faulted with for procedural illegalities or irregularities which vitiate the process by which the decision was arrived at . Judicial Review, it must be remembered, is directed not against the decision, but is confined to the examination of the decision-making process. The Court while exercising the power of Judicial Review must remain conscious of the fact that if the decision has been arrived at by the Administrative Authority after following the principles established by law and the rules of natural justice and the individual has received a fair treatment to meet the case against him, the Court cannot substitute its judgment for that of the Administrative Authority on a matter which fell squarely within the sphere of jurisdiction of that authority.
18. From the aforesaid, it is seen that while exercising the power of judicial review, it is neither open to the Tribunal to reappraise the evidence nor it can substitute its judgment for that of the administrative authority, as it does not sit in appeal over the decision of the disciplinary authority. However, the applicants precisely want us to do that. Whether the applicants have been responsible for perfunctory investigation in not arresting the accused or not, it is for the authority concerned to decide. Whether the applicant exhibited negligence and lackadaisical attitude in conduct of the investigation of the case entrusted to them is also for the authority concerned to decide. Whether the applicants have done their best or there has been any deficiency also fall within the domain of the executive authority. It is pertinent to note that the charge framed against the applicants was two-fold, one for not arresting the accused and another for delay in investigation resulting in it becoming time barred. The inquiring authority as well as the disciplinary and appellate authorities have held in favour of the applicants that they were not responsible for the delay in investigation resulting in it becoming time barred. However, on the other count with regard to not arresting the accused, all the three authorities, i.e., inquiring authority and the disciplinary and appellate authorities were of the view that the applicants conduct was not upto the mark which ultimately resulted into its censure by the respondents authorities. If the authorities in their wisdom after giving due consideration to all the relevant facts and circumstances and the material on the subject, came to the conclusion that the applicants were guilty of alleged misconduct, the same cannot be found faulted with. As regard the applicants claim that they did their best, it is for the authorities concerned to decide on this aspect of the matter. We can neither sit in appeal nor can substitute our own judgment for that of the administrative authority concerned. Furthermore, if one is allowed to say that he did his best and get away with it, then there will be no occasion to hold any person guilty for dereliction of duties in such cases. The fact remains that it is for the disciplinary authority to decide as to whether the defaulting officers are guilty of alleged misconduct or not. Judicial review in such a case would be directed against the process in which such a decision is taken not against the decision itself. Viewing it from that angle, the present case cannot be said to be a case of no evidence. Once there is shown to be some evidence, it is not open for us to go into the sufficiency and adequacy of the evidence. The applicants have been given due opportunity of being heard. There is no infraction of any rule.
19. Although the learned counsel for the applicants did not press for declaration in terms of prayer clause as to the authority of the inquiring authority as well as the conduct of the inquiry in terms of Rule 16 of the Delhi Police (Punishment & Appeal) Rules, 1980, in spite of raising this in the grounds taken in the Applications yet we have given our careful consideration to this aspect of the matter as well and are of the view that the applicants have not been able to make out any case for the declaration as sought by them. It is relevant to note in this regard that despite SI Sandeep Sharma also proceeded against jointly with the applicants, but he was not found guilty of committing the alleged misconduct in the same inquiry following the same procedures and the same was duly agreed to by the disciplinary authority. Even against the applicants, the charge was held to be proved partly. The other part with regard to the case being become time barred as a result of applicants investigation was held in their favour. These facts negate the applicants averments as to malafide intention of the inquiry officer as well as disciplinary authority. Nor do we find any violation of Rule 16 of Delhi Police (Punishment & Appeal) Rules, 1980, as alleged by the applicants. The applicants have thus failed to make out a case for grant of the relief sought by them.
20. In the facts and circumstances of the case and for the reasons stated above, we do not find any merit in these Applications and the same are accordingly dismissed. No order as to the cost.
(Dr. Dharam Paul Sharma) (Shailendra Pandey)
Member (J) Member (A)
/ravi/