Central Administrative Tribunal - Delhi
Dharambir Singh vs Comm. Of Police on 17 May, 2016
1 OA No.3680/2014
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A. No.3680/2014
Reserved On:11.05.2016
Pronounced On:17.05.2016
HON'BLE MR. JUSTICE M.S. SULLAR, MEMBER (J)
HON'BLE MR. V.N. GAUR, MEMBER (A)
Inspector Dharambir Singh
Inspector No.D-2548 PIS No.28780863
S/o Shri Deshpal Singh
R/o Quarter No.309, Police Colony,
Ashok Vihar, Delhi-52.
Group 'B', Aged 57 years. ...Applicant
(Argued by: Mr. Surabh Ahuja, Advocate)
Versus
1. GNCT of Delhi
Through Commissioner of Police,
PHQ, I.P. Estate,
MSO Building,
New Delhi.
2. Joint Commissioner of Police,
Northern Range,
Through Commissioner of Police,
PHQ, I.P. Estate,
MSO Building,
New Delhi.
3. Additional Deputy Commissioner of Police-I,
Outer District,
Through Commissioner of Police,
PHQ, I.P. Estate,
MSO Building, New Delhi. ....Respondents
(By Advocate : Mr. Vijay Pandita)
ORDER
Justice M. S. Sullar, Member (J) The challenge in this Original Application (OA) filed by applicant, Inspector Dharambir Singh, is to the impugned Show Cause Notice (SCN) dated 08.08.2011 (Annexure A-1), 2 OA No.3680/2014 order dated 07.11.2011 (Annexure A-2) passed by the Disciplinary Authority (DA) and the order dated 23/26.11.2012 (Annexure A-3) passed by Appellate Authority (AA).
2. The matrix of the facts, which needs a necessary mention for the limited purpose of deciding the core controversy, involved in the instant OA and emanating from the record, is that applicant was posted as SHO, Police Station, Samay Pur Badli (SPB) at the relevant time. An Information regarding the theft of Gold Jewellery in House No.B-1/28, Sector 18, Rohini, was received on 09.06.2011. It was entered into DD No.41-A dated 09.06.2011 in the Police Station. The information was passed to SI Gaurav for necessary action. The SI reached the spot and kept the DD entry pending for the reason best known to him.
3. According to the respondents, clear directions were issued to the SHOs/IOs that as and when an information regarding commission of cognizable offence is received, proper FIR will be registered immediately. In the present case investigating officer (IO) did not register the FIR immediately. Thus, applicant (SHO) failed to supervise the prompt registration of the FIR in cognizable offence. Subsequently, in the wake of arrest of accused, the FIR No.243/11 under Section 454/380/34 IPC was registered at Police Station, SPB regarding burglary of gold jewellery etc. after a gap of 19 days from the date of actual 3 OA No.3680/2014 occurrence. Thus, the applicant was stated to have committed a grave misconduct, negligence and carelessness in discharge of his official duty.
4. As a consequence thereof, applicant was served with impugned SCN (Annexure-1) for imposing minor penalty of 'Censure'. The applicant filed his reply (Annexure-4) to the SCN, which was found to be unsatisfactory.
5. Thereafter, taking into consideration the serious misconduct and lapses on the part of the applicant, his conduct was Censured vide the impugned order dated 07.11.2011 (Anenxure-2) passed by the DA, which reads as under:-
"ORDER A Show Cause Notice for censure was issued to Inspr. Dharambir Singh, D-2548 (PIS No.28780863) SHO/S.P. Badli vide this Office No.12644-45/HAP/Outer District dated
8.8.2011 on the allegation that an information regarding theft at House No.B-1/28 Sector 18, Rohini received vide DD No.41-A dated 9.6.2011 was entrusted to SI Gaurav PS S.P. Badli for necessary action. The SI reached the spot and kept the DD entry pending for the reasons best known to him. There are clear directions that as and when an information regarding commission of cognizable offence is received, proper FIR will be registered immediately. In the instant case, accused Bhagwati Prasad S/o Tarkeshwar R/o Village Shankar Pur, PO Majhauli, PS Bansdid Road, District Balia, UP and Irfan @ Don S/o Jalil Ahmed R/o Noori Masjid Uttar Ujala, Indra Nagar, Haldwani, Uttarakhand were arrested on 27.06.2011 by Special Cell u/s 41.1 CrPC. They made the disclosure regarding commission of theft in this case. Later on a case FIR No.243/11 u/s 454/380/34 IPC was registered at S.P. Badli regarding burglary of gold jewellery etc. However there is considerable delay of 19 days in registration of the case. In view of the above it is quite clear that Inspr. Dharambir Singh D-2548, SHO/S.P. Badli being the supervisory officer failed to supervise the pending DD entry promptly and professionally which caused unnecessary delay in registering the case. This is a serious lapse on the part of the SHO.
The Inspector received the copy of SCN and submitted his reply. In his reply he has contended that an information regarding theft in the house in Sector 18 was received vide 4 OA No.3680/2014 DD No.41-A dated 9.6.2011 which was marked to SI Gaurav for necessary action. The SI reached the spot and met with house owner Shri Pritam R/o B-1/28, Sector 18, Rohini, who told him that he will give the statement after checking the house, later on. Hence, he put the DD entry pending. However, he called the crime team and get the house inspected. Later, on 28.06.2011, Shri Pritam Lal s/o Tulsi Ram came to police station and got lodged the FIR No.243/11 u/s 454/380 IPC. He has stated in his statement that due to busy schedule he did not get recorded his statement on 09.06.2011. When he recorded his statement the present case was registered.
I have carefully gone through the written as well as oral submission put forth by the Inspector which is not found to be satisfactory as he is failed to take prompt action and delayed the matter unnecessarily without any cogent reason. Therefore, dissatisfied with reply submitted by the Inspector and overall facts and circumstances of the case, the proposed Show Cause Notice issued to Inspector Dharambir Singh, D-2548 (PIS No.28780863) SHO/S.P. Badli is confirmed and his conduct is hereby CENSURED for the above said lapse.
Let a copy of this order be given to him free of cost. He can file an appeal against the order to the Joint C.P./Northern Range, Delhi within 30 days from the date of its receipt non-judicial stamp paper valued 00.75 Paise by enclosing a copy of this order, if he desires."
6. Sequelly, the appeal filed by him was dismissed as well vide impugned order dated 23/26.11.2012 (Anneuxre-3) by the AA.
7. Aggrieved thereby, the applicant has preferred the present OA, challenging the impugned SCN and orders passed by DA & AA, mainly on the ground that the DA & AA did not appreciate the fact that this is not a case of misconduct as efforts were made to contact the complainant immediately. He could not be contacted nor he visited the Police Station for getting his statement recorded. As soon as he came to the Police Station, his statement was recorded and FIR No.243/11 under section 454/380/34 IPC was registered in the present case. As such there was no delay in 5 OA No.3680/2014 registering the FIR. The DA has not considered the issues raised by the applicant in his reply and passed the impugned order without any evidence. The AA has also dismissed his appeal in a very casual manner. It has caused a great prejudice to his case. It was pleaded that applicant cannot be penalized for the delay caused by the complainant to come to the Police Station to record his statement.
8. According to the applicant, the impugned orders are cryptic, non-speaking, illegal and against the principles of natural justice. On the basis of the aforesaid grounds, the applicant has sought quashing of the impugned SCN and orders of DA & AA in the manner indicated hereinabove.
9. The contesting respondents refuted the claim of the applicant, filed the reply and acknowledged the factual matrix. However, on merits, it was pleaded that very clear instructions/directions were issued to the SHOs/IOs that as and when any information regarding cognizable offence is received, proper FIR should be registered immediately. It was the duty of the applicant to immediately register the FIR and to investigate the offence of house trespass, burglary and theft. In the present case, the FIR was registered of pointed cognizable offences after a delay of 19 days of the incident.
10. It was claimed that DA has carefully considered the reply as well as oral submission put forth by the applicant during Orderly Room (OR) hearing. The same were found not to be satisfactory as the applicant failed to take prompt 6 OA No.3680/2014 action and delayed the matter without any cogent reason. Thus, the conduct of the applicant was rightly Censured by the DA and the appeal was duly considered and rejected by the AA.
11. Instead of reproducing the entire contents of the reply and in order to avoid the repetition, suffice it to say that virtually reiterating the validity of the SCN and impugned orders, the respondents have stoutly denied all the allegations contained in the OA and prayed for its dismissal. Thus it would be seen that the facts of the case are neither intricate nor much disputed.
12. Having heard the learned counsel for the parties and after going through the record with their valuable help, we are of the considered opinion that there is no merit and the instant OA deserves to be dismissed for the reasons mentioned herein below.
13. Considering the factual position on record, the short and significant question, that arises for determination in this case is, as to whether non-registration of FIR promptly, in a criminal case of cognizable offence was justified and amounts to a misconduct or not?
14. Having regards to the rival contentions of the learned counsel for the parties, we are of the firm view that the answer must obviously be in the negative.
15. Ex-facie, the argument of the learned counsel for the applicant that since the complainant did not turn up to the 7 OA No.3680/2014 Police Station to record his statement and therefore, SI Gaurav kept the matter in abeyance, so no misconduct can be attributed to the applicant, is not only devoid of merits but misplaced as well.
16. As is evident from the record a specific information of commission of cognizable offences of house trespass, burglary and theft in house No.B-1/28, Sector 18, Rohini was received and duly entered in the DD No.41-A of the concerned Police Station. However, there is considerable delay of 19 days in registering of the FIR/criminal case. It is not a matter of dispute that allegations contained in the information, indeed constitute offences of house trespass, burglary and theft of gold jewellery etc., which are cognizable and non-bailable offences as per Schedule-I of the Criminal Procedure Code, 1973 (for short "Cr.PC"), and that it was committed within the jurisdiction of Police Station, SPB, under the direct supervision and control of applicant, who was posted as incharge and SHO (there) at the relevant time.
17. The positive case of the department is that clear directions have already been issued to SHOs/IOs to immediately register the FIR in cognizable case as soon as information is received of commission of cognizable offences. In that eventuality, it was the mandatory duty of the applicant, being incharge of the Police Station, to ensure prompt registration and investigation of the criminal case registered against the accused. Not only that in such 8 OA No.3680/2014 cognizable and non-bailable offences, the police has been given the power to arrest the accused without any warrant as envisaged under Section 41 of Cr.PC.
18. It cannot possibly be denied that Delhi being the national capital is a sensitive place where the incidents of house trespass, burglary and thefts are tremendously increasing day by day. If prompt FIRs are not registered against the accused, then there will be no end to it, which indeed would encourage the accused to commit and repeat such offences.
19. The mere fact that the complainant did not turn up to record the statement in the Police Station, ipso facto, is not a ground, much less cogent, to exonerate the applicant because it was his duty to ensure prompt registration of the FIR of cognizable offences, particularly when the statement of complainant, is not a condition precedent, for registering the FIR in a case of cognizable offences. His statement could be recorded subsequently. Hence, this explanation of the applicant is neither here nor there and is far from legal truth.
20. This matter can be viewed entirely from a different angle. Section 154 of Cr.PC posits that every information relating to the commission of a cognizable offence, to an officer in charge of a Police Station, shall be reduced to writing by him or under his direction. Then the SHO is required to promptly register an FIR and to investigate the 9 OA No.3680/2014 case. According to Section 156, any officer incharge of the Police Station may, without the order of the Magistrate, investigate any cognizable case, which a court having jurisdiction over the local area within the limits of his Police Station, would have power to enquire into or try under the provisions of Chapter XIII. Sub-section (2) provides that no proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer shall not empowered to investigate under this section.
21. Meaning thereby, it was obligatory and mandatory on the part of the applicant to immediately register or to ensure the prompt registration of the FIR and then to investigate the cognizable case of house trespass, burglary and theft.
22. As soon as the information regarding commission of cognizable offence was received, the applicant being the SHO, was required to promptly register and investigate the case in terms of Section 154 and 156 of Cr.PC. Even if SI Gaurav (IO) was not taking any prompt action, it was the duty of the applicant (SHO) to take action against him or to transfer the investigation of the case to himself or to some other competent officer. In this manner, he has miserably failed to exercise his supervisory and statutory powers. This naturally amounts to misconduct on his part in view of the ratio of law laid down by this Tribunal in OA No.3235/2013 decided on 04.05.2016 titled as Inspector Raj Singh Vs. 10 OA No.3680/2014 Govt. of NCTD & Others. The law laid down in the aforesaid judgment mutatis mutandis is applicable to the present case and is complete answer to the problem in hand.
23. The next argument of the learned counsel for the applicant that the allegations attributed to the applicant will not constitute any misconduct on his part warranting disciplinary proceeding, is again not tenable. The observation of the Single Bench of this Tribunal in OA No.383/2006 decided on 07.08.2006 titled as Inspector Krishan Kumar Vs. Got of NCT and Others is not applicable to the facts of the present case, as in that case there was no delay and the complainant had not reported the information of cognizable offence of theft to the Police Station before the date it was reduced in writing and FIR was registered. In the peculiar facts and special circumstances of that case, it was observed that reasonable explanation has not been considered by the competent authority which lacks logic and shows closed application of mind.
24. Possibly no one can have a dispute on the aforesaid observation, but the same would not come to the rescue of the applicant in this controversy. As indicated herein above, in the instant case there is a clear cut delay of 19 days in lodging an FIR in a cognizable offence. This argument of the learned counsel will not advance the cause of the applicant in any manner.
11 OA No.3680/2014
25. Moreover, the jurisdiction of judicial review of this Tribunal in such disciplinary matters is very limited. The Hon'ble Apex Court while considering the jurisdiction of judicial review and rule of evidence in the case of B.C. Chaturvedi Vs. U.O.I. & Others AIR 1996 SC 484 has ruled as under:-
"12. 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 eye of the Court. When an inquiry is conducted on charges of a 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 be 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 office is guilty of the charge. The Court/Tribunal on its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at the 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 of 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.
13. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has co-extensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H. C. Goel (1964) 4 SCR 718 : (AIR 1964 SC 364), this Court held at page 728 (of SCR): (at p 369 of AIR), that if the conclusion, upon consideration of the evidence, reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued".12 OA No.3680/2014
26. Similarly, the Hon'ble Apex Court in the case of K.L. Shinde v. State of Mysore, (1976) 3 SCC 76, having considered the scope of jurisdiction of this Tribunal in appreciation of evidence, it was ruled as under:-
"9. Regarding the appellant's contention that there was no evidence to substantiate the charge against him, it may be observed that neither the High Court nor this Court can re- examine and re-assess the evidence in writ proceedings. Whether or not there is sufficient evidence against a delinquent to justify his dismissal from service is a matter on which this Court cannot embark. It may also be observed that departmental proceedings do not stand on the same footing as criminal prosecutions in which high degree of proof is required. It is true that in the instant case reliance was placed by the Superintendent of Police on the earlier statements made by the three police constables including Akki from which they resiled but that did not vitiate the enquiry or the impugned order of dismissal, as departmental proceedings are not governed by strict rules of evidence as contained in the Evidence Act. That apart, as already stated, copies of the statements made by these constables were furnished to the appellant and he cross- examined all of them with the help of the police friend provided to him. It is also significant that Akki admitted in the course of his statement that he did make the former statement before P. S. I. Khada-bazar police station, Belgaum, on November 21, 1961 (which revealed appellant's complicity in the smuggling activity) but when asked to explain as to why he made that statement, he expressed his inability to do so. The present case is, in our opinion, covered by a decision of this Court in State of Mysore v. Shivabasappa, (1963) 2 SCR 943 = AIR 1963 SC 375 where it was held as follows:-
"Domestic tribunals exercising quasi-judicial functions are not courts and therefore, they are not bound to follow the procedure prescribed for trial of actions in courts nor are they bound by strict rules of evidence. They can, unlike courts, obtain all information material for the points under enquiry from all sources, and through all channels, without being fettered by rules and procedure which govern proceedings in court. The only obligation which the law casts on them is that they should not act on any information which they may receive unless they put it to the party against who it is to be used and give him a fair opportunity to explain it. What is a fair opportunity must depend on the facts and circumstances of each case, but where such an opportunity has been given, the proceedings are not open to attack on the ground that the enquiry was not conducted in accordance with the procedure followed in courts.
2. In respect of taking the evidence in an enquiry before such tribunal, the person against whom a charge is made should know the evidence which is given against him, so that he might be in a position to give his explanation. When the evidence is oral, normally the explanation of the witness will in 13 OA No.3680/2014 its entirety, take place before the party charged who will have full opportunity of cross-examining him. The position is the same when a witness is called, the statement given previously by him behind the back of the party is put to him ,and admitted in evidence, a copy thereof is given to the party and he is given an opportunity to cross-examine him. To require in that case that the contents of the previous statement should be repeated by the witness word by word and sentence by sentence, is to insist on bare technicalities and rules of natural justice are matters not of form but of substance. They are sufficiently complied with when previous statements given by witnesses are read over to them, marked on their admission, copies thereof given to the person charged and he is given an opportunity to cross-examine them."
27. Therefore, the Disciplinary Authority has rightly Censured the conduct of the applicant and the Appellate Authority has recorded valid reasons to dismiss his appeal. The Disciplinary as well as Appellate authorities have recorded cogent reasons and examined the matter in the right perspective. We do not find any illegality, irregularity or any perversity in the impugned orders. Hence, no interference is warranted in this case by this Tribunal.
28. No other point, worth consideration, has been urged or pressed by learned counsel for the parties.
29. In the light of the aforesaid reasons and thus seen from any angle, there is no merit and hence the OA deserves to be and is hereby dismissed in the obtaining circumstances of the case. No costs.
(V.N. GAUR) (JUSTICE M.S. SULLAR) MEMBER (A) MEMBER (J) Rakesh