Central Administrative Tribunal - Delhi
Anil Kumar vs Govt. Of Nct Of Delhi Through on 19 August, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 2639/2010 NEW DELHI THIS THE 19th DAY OF AUGUST, 2011 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE DR. VEENA CHHOTRAY, MEMBER (A) Anil Kumar, Constable in Delhi Police, S/o Sh. Mahender Singh, R/o 307, Phase-I, Pocket-1, Sector-13, Dwarka, New Delhi. Applicant. (By Advocate Shri Anil Singal) VERSUS Govt. of NCT of Delhi through 1. Commissioner of Police, PHQ, IP Estate, New Delhi. 2. Joint C.P. (Special Branch), Asaf Ali Road, Police Bhawan, New Delhi. 3. D.C.P. (DE Cell), Asaf Ali Road, Police Bhawan, New Delhi. Respondents. (By Advocate Ms. Sumedha Sharma) ORDER
Mr. G. George Paracken:
This Original Application has been filed against the Annexure A-1 order dated 03.03.2008 by which the disciplinary authority has held that the Applicant was liable to be dealt with departmentally under the provisions of Delhi Police (Punishment and Appeal) Rules, 1980 for the gross misconduct and negligence in the discharge of his official duties. The allegations against him contained in the said order read as under:
It is alleged against Inspr. Inder Singh, No. D-I/660, ASI Suresh Kumar No. 2001/D, Ct. Anil Kumar, No. 1693/SW & Ct. Mahabir Singh No. Abdul Shamshad @ Raju S/O Shri Abdul Sattar R/O RZ-862/A, Gali No. 15-A, Sadh Nagar, Delhi was arrested by SI Ashok Kumar of Spl. Staff/SWD in case FIR No. 443/2007 U/S 25/27/59 Arms Act, Police station Sarojani Nagar, Delhi. Accused had confessed about his associate Bishans involvement in case FIR No. 729/2007 u/s 457/380 IPC Police Station Dabri. On 23/8/2007, SI Jagdish Kumar of PP Manglapuri had obtained one day police custody remand of accused Abdul Shamshad @ Raju from the court concerned. ASI Ramesh Chander of PP Manglapuri had interrogated the accused and thereafter lodged him in the lock-up at about 5.30 P.M. from where accused Shamshad @ Raju escaped by bending the iron bars of lock-up gate & taking advantage of light failure between 9.00 PM to 1045 PM for which a case vide FIR No. 740/2007 u/s 224 IPC was got registered at P.S. Dabri.
Iron bars of lock-up gate of Police Station Dabri were in decomposition condition at the time of escape of accused. Though one generator was provided to the Police Station, but the same was also not in working condition at that time. Further, as per `Chitha, Constable Mahabir Singh was detailed as Sentary, but Constable Anil Kumar had performed Sentary duty in his place, which reflects that the then SHO had not paid proper attention towards safe custody of accused as well as not supervised the staff under his control properly.
Inspr. Inder Singh. No. D-I/660 (being SHO) failed to get repaired the iron bars of lock-up gate (which were in decomposition condition) as well as Govt. Generator set. He alongwith ASI Suresh Kumar No. 2001/D (Duty Officer) are also failed to ensure that Sentary is alert on his duty & accused is in normal way in the lockup, specially at the time of light failure & proper deployment of staff as per Chitha Ct. Mahabir Singh No. 1781/SW changed his Sentary duty with Ct. Anil Kumar, without the knowledge of SHO/DO/Chitha Munshi and both the Constables had changed their duty at their own discretion. Ct. Anil Kumar No. 1693/SW performed Sentary duty in very callous and negligent manner, resulting the accused succeeded in escape from lawful custody of police.
2. By the Annexure A-2 letter, the applicant was served with the summary of allegations, list of witnesses and list of documents. Annexure A-3 is the Enquiry Officers report, according to which, the aforesaid allegation against the applicant was proved. By the Annexure A-4 order dated 11.09.2009, the disciplinary authority has imposed the punishment of forfeiture of one year of approved service permanently upon the applicant, entailing proportionate reduction in his pay. His suspension period from 24.08.2007 to 09.06.2008 was also treated as period not spent on duty for all intents and purposes. By the Annexure A-5 order dated 28.05.2010, the appellate authority has considered the appeal against the aforesaid order of the disciplinary authority and rejected it holding that there is no reason to interfere with the same.
3. As seen from the aforesaid Annexure A 1 order dated 03.03.2008, the main allegations against the applicant were as under:
1. On 23.08.2007, when he was detailed on sentry duty in the lock up gate from 9.00 PM to 12.00 mid night, one accused Abdul Shamshad @ Raju S/o Shri Abdul Sattar R/o RZ-862A, Gali No. 15-A, Sadh Nagar, Delhi succeeded in escaping from lawful custody of Police Station Dabri by bending the iron bars of the lock up gate.
2. As per chitha detailed 23.08.2007, Const. Mahabir Singh No. 1781/SW was detailed as sentry from 9 AM to 12 noon and 9 PM to 12 mid-night, but instead Constable Anil Kumar No. 1693/SW had performed sentry duty in place of Const. Mahabir Singh No. 1781/SW from 9.00 PM to 12.00 Mid-night. Const. Mahabir Singh No. 1781/SW and Const. Anil Kumar interchanged their duties at their own discretion without the knowledge of SHO/DE/Chitha Munshi.
4. The applicant denied the aforesaid allegations against him stating that there was not even an iota of evidence against him and, therefore, deserves complete exoneration. His further contention was that being a holder of the lowest post of Constable, he was not responsible for the escape of accused Shamshad who was slipped away when there was complete darkness inside the lock-up whereas there was full arrangement for emergency light by planting a private inverter by co-accused Inder Singh in his office as well as in the office of Duty Officer. He has also submitted that it was not possible in a police station of Delhi Police to change the contents of Daily Diary or to change the contents of an FIR. However, the documents like Duty Register/Chitha can be changed at any moment whenever it is decided by the Chitha Munshi or the SHO to save their own skin and in his case it has happened that the Duty Chitha was changed.
5. However, according to the Enquiry Officer, the applicant was detailed on sentry duty in the lock up gate from 9.00 PM to 12.00 mid night on 23.08.2007. It was proved during the enquiry that he had left for urinating without informing the duty officer and when he returned from there, he saw that the accused had run away from the lock up. Then, he informed the duty officer about it. During the enquiry proceedings, PW-8 stated that the Applicant changed the sentry duty with Mahabir Singh without the knowledge of SHO (DO/Chitha Munshi). The Enquiry Officer in his report proved that the applicant was on sentry duty at the relevant time and no other sentry was on duty in the police station. It has been stated by the enquiry officer that he has accepted his statement recorded under Section 161 Cr.P.C. by the Investigating Officer of the case that light had gone and he left the lockup for urinating. According to the enquiry officer, the sentry should have been very much vigilant towards his duty when the main power/light has gone but he left the lock up without informing the duty officer. According to the enquiry officer, the charge against the applicant that he had performed sentry duty in a very negligent and callous manner, resulting the accused succeeding in escape from the lawful custody of police stands proved but the other part of the charge against him regarding change of duty at his own discretion was not proved. The disciplinary authority agreed with the aforesaid findings against the applicant and punished him. The appellate authority has also rejected his appeal.
6. The applicant has challenged the aforesaid orders of the respondents on the ground that in accordance with the Standing Order No. 52, two Constables were required to be posted for one accused and it was an admitted position that no nigrani Constable was detailed with the applicant which shows that the SHO and the duty officer did not perform their duty as per the aforesaid standing instructions. Therefore, according to the applicant, it was wrong that he was negligent or contravened any of the instructions. His further contention is that despite the allegations of negligence on his part in the escape of an accused amounts to an offence under the provisions of IPC but only the departmental enquiry was initiated without recording the reasons as to why the case was to be dealt with only departmentally and the same was in violation of Rule 29 (3) of the Delhi Police (Punishment and Appeal) Rules, 1980 which reads as under:
(3) If the enquiry establishes negligence or connivance in an escape, thereby creating a presumption that an offence under Section 221, 222 or 223 IPC has been committed, the police officer concerned shall be prosecuted in a criminal court, unless the Additional Commissioner of Police on a reference by the Deputy Commissioner of Police decides, for reasons to be recorded in writing that the case shall be dealt with departmentally. If the enquiry establishes a breach of discipline or misconduct not amounting to an offence under any of the sections of the I.P.C. mentioned above, the case shall ordinarily be dealt with departmentally. The criminal prosecution under this rule of an upper subordinate shall not be undertaken without the sanction of the Additional Commissioner of Police.
Dismissal or removal from service shall normally follow a judicial conviction, for finding of guilt in a departmental enquiry for negligence resulting in the escape of a prisoner.
7. In support of the aforesaid submission, the learned counsel for the applicant Shri Anil Singal has relied upon the judgment of the Punjab and Haryana High Court in the case of Sarup Singh Vs. The State of Haryana and Ors. (1983 (3) SLR 585 ) in which the Court was considering the import of Rule 16.38 of the Punjab Police Rules as applicable to Haryana which is in peri materia with the Delhi Police Rules. The Court after considering the facts and circumstances of the aforesaid case held as under:
The sole submission of Mr. Gopi Chand, learned counsel for the respondents is that the provisions of sub-rule (2) of this Rule are only directory and there is substantial compliance of the same. So far as the first part of the argument of the learned counsel is concerned, I find the same is totally devoid of any merit in the light of the dictum of a Full Bench of this Court in Nand Nandan Sarup v. The District Magistrate Patiala and others (1), wherein it has been laid down that the provisions of this Rule are mandatory in nature. Otherwise also it is plain from the language of this sub-rule that the same is not merely directory. Had it been so, the Rule would not have insisted upon the recoding of reasons by the District Magistrate for not following the normal course of launching a prosecution against a delinquent officer or for deviating from the same in holding a departmental enquiry against him. So far as the second aspect of the argument is concerned, I again find that the same is bereft of any substance. The order of the Deputy Commissioner which has already bee reproduced above is a self contained order and does not in the least give any reasons for deviating from the normal course of launching a prosecution against the petitioner as a result of the preliminary enquiry held against him. The reference to Ram Phal v. The State of Haryana and others (2), by the learned counsel for the respondents appears to be irrelevant in the light of the facts of the two cases. In that case what had happened was that the District Magistrate had either agreed to or approved the proposal made by the Superintendent of Police in his memorandum suggesting the holding of a departmental enquiry only. No such situation exists here. As already pointed out, the impugned order of the District Magistrate (Annexure P.3) is a self contained order. It has not been passed in the context of any other note or proposal by any other authority. The District Magistrate make a reference to the departmental enquiry held against the petitioner under sub-rule (1), finds the charges to have been prima facie established and then suddenly in paragraph 2 of the order, directs the initiation of a departmental enquiry against him. No reason whatsoever as required by sub-rule (2) for deviating from the normal course of prosecution has been recorded.
8. The learned counsel has further submitted that even if the departmental enquiry has been ordered by the Joint Commissioner of Police but the order initiating the same was completely silent about the compliance of the provisions of Rule 29(3) of the Delhi Police (Punishment and Appeal) Rules, 1980. According to him, the respondents ought to have shown the records that the competent authority has applied its mind on the issue and taken a considered decision to initiate only departmental enquiry and not to register a criminal case for the reasons reduced in writing In the absence of the same, according to the learned counsel, the departmental enquiry against him on the orders of the Joint Commissioner of Police is in violation of the aforesaid Rules and, therefore, it is liable to be dismissed. In this regards, learned counsel has also relied on the order of a co-ordinate Bench of this Tribunal in OA 95/2006 Naresh Kumar Vs. Commissioner of Police & Ors. decided on 06.03.2007. The relevant part of the said order is as under:
10. Learned counsel would also place reliance on a decision of the Delhi High Court in Union of India v. Ravi Dutt, 1973 (1) SLR 1222 (P&H), wherein a similar provision existed under Rule 16.38 (1) and (2) of the Punjab Police Rules, 1934, had come to be interpreted with the following observations:
19. Now as regards the non-compliance with Rule 16.38 (2) the facts already given show as per the extract of the letter dated 18-8-1959 by the Superintendent of Police mentioned earlier that even though permission was sought from the District Magistrate to initiate departmental action, it was made clear that the question of launching criminal permission would be taken up after taking the departmental action. Now reference to Rule 16.38 (2) will show that when a complaint establishes a prima facie case, a judicial prosecution shall normally follow, the matter shall be disposed departmentally only if the District Magistrate so orders for reasons to be recorded. No doubt in the sanction given by the District Magistrate permission was only given for taking departmental action but it was not made clear whether the question of launching criminal prosecution was kept pending as had been suggested by the Superintendent of Police or had been given up. It appears to us that this is also one of the infirmities in the order of sanction because the District magistrate when he gives sanction under this Rule has got to make up his mind whether the matter is to be disposed of departmentally or by a judicial prosecution and cannot leave the matter in an uncertain state of affairs, without deciding which alternative to follow. The more serious infirmity in the order of sanction accorded under Rule 16.38 (2) by the District Magistrate is absence of recording of any reason why a departmental action is being preferred. A reference to the order of sanction by the District Magistrate dated 31-8-1959 shows that no reasons have been recorded at all for taking departmental action. No doubt it is mentioned that the preliminary investigation has established the fact that the A.S.I. is guilty of gross misconduct which warrants the initiation of disciplinary proceedings but the reasons that are to be recorded by the District Magistrate as required by Rule 16.38 (2) are for not proceeding with judicial prosecution and for proceeding departmentally as held in Nand Nandan Sarups case (FB). In this connection we may refer to a decision by one of us (Patachari J.) in N.N. Seth v. Delhi Administration etc. (C.W. 158-D of 1966) decided on 4-9-1970.
11. In the above view of the matter, learned counsel would contend that having failed to discharge the obligation the order passed, approving the DE and subsequent orders are rendered illegal.
12. On the other hand, Ms. Rashmi Chopra, learned counsel appearing for respondents vehemently opposed the contentions and produced before us the departmental record, where sanction has been accorded by the Joint Commissioner of Police is verbatim at page 136 of the OA, relied upon by applicant.
13. Learned counsel would contend that once the Joint Commissioner of Police on the basis of PG report has decided to proceed applicant in a DE, by necessary implication, registration of a criminal case is ruled out and it is valid compliance of Rule 15 (2) of the Rules ibid.
14. Learned counsel has distinguished the decision in Vijay Singhs case (supra) by contending that therein no approval under Rule 15 (2) of the Rules ibid was accorded, whereas in the present case the Joint Commissioner has accorded approval.
15. We have carefully considered the rival contentions of the parties and perused the material on record.
16. It is trite that when a provision in the Rules is enacted it has some utility. It will not be otiose or redundant, as legislature or on delegated powers administrative authorities do not commit any mistake. Accordingly, Rule 15 (2) of the Rules ibid obligates the Joint Commissioner of Police to accord his approval on the basis of PE as to whether a criminal case should be registered or investigated or DE should be held. The aforesaid connotes that the Additional Commissioner of Police is not absolved from not recording reasons as to registration of a case, as the things which are to be done in a particular manner by the public functionary or even by the quasi-judicial authority are to be done in the manner prescribed and no deviation or other method should be adopted. The contention put-forth by the learned counsel of respondents as to approval of the DA on the basis of the report of the PRG and approval to the DE, by necessary implication, discharges the obligation as to registration of a criminal case and investigation thereof is ruled out, cannot be countenanced in law. If between the two options Additional Commissioner of Police has to pick up one, it is incumbent upon him to record reasons and apply its mind as to exclusion of other option. Admittedly, when in the present case allegations constitute alleged cognizable offence against applicant in relation with public and in discharge of official duties the positive part of the rules, rather than a procedural flaw, that there should be application of mind or recording of reasons as to non-registration of a criminal case. From the perusal of the record, we do not find from the PRG report or note submitted to the Joint Commissioner of Police any indication as to possibility of registering a case and investigation thereof.
17. The High Court of Delhi in Ravi Dutts case (supra) while dealing with a provision in pari meteria with Rule 15 (2) of the Rules ibid observed that the sanction of District Magistrate as to DE is silent and is not clear as to whether the question of launching a criminal prosecution was kept pending and considered, as the matter has been left in larch in an uncertain state of affairs without deciding which alternative to follow, the orders have been set aside.
18. An identical controversy when raised by Constable Tej Pal Singh before this Tribunal in OA-132/2006 Constable Tej Pal Singh v. Govt. of NCT of Delhi & Others, an order passed on 22.2.2007, observed as under:
16. Rule 15 (2) of the Rules ibid precedes in Rule 15 (1) of the Rules a PE, which has an object to collect evidence, material, identify the default and the defaulters. This is proceeded by a regular DE. In a case where during the performance of official duties by a police official in relation with the public a cognizable offence is made out, then on the basis of conclusion arrived at in the PE it is obligated upon the authority to forward such a finding to the Joint Commissioner for taking action under Rule 15 (2) of the Rules, which, as a condition precedent, imposes upon the concerned authority an obligation to record a specific finding and take a decision as to whether the allegations constituting misconduct requires registration of a criminal case or a DE can be straightway ordered. In the present case, the report submitted by the Additional DCP (E) has been treated as a PE, as it has been referred to the Joint Commissioner of Police for his approval. If the file has been sent for approval to the Joint Commissioner of Police, for want of any other provision, it is to be implied that this has been sent under Rule 15 (2) of the Rules ibid. Now, it is to be seen whether the Joint Commissioner has discharged his obligation under Rule 15 (2) of the Rules or not? From the perusal of the record submitted by the learned counsel of respondents what we find is that on taking cognizance of the report by DCP (E) disciplinary proceedings against all the five defaulters had been ordered and for which ACP, Vivek Vihar, Delhi was also held responsible for his failure to effectively supervise. It leaves no doubt in our mind that there has not been a recording as to the prospects of registration of a criminal case and investigation thereof.
17. In R.C. Shekharan (supra), which is a binding on us and impliedly overrules any other decision of the coordinate Bench, it is ruled that while according permission under Rule 15 (2) of the Rules, such a consideration is mandated. In such view of the matter, having not discharged its obligation under Rule 15 (2) of the Rules ibid, the orders passed, approving the DE, by the Joint Commissioner of Police is not a valid compliance of the Rule and is not inconformity with it.
18. As to why prejudice has been caused in a case where the delinquent official, on examination under Rule 15 (2) of the Rules by the Joint Commissioner, is involved in a criminal case, is prima facie implicated in a criminal case to be registered and investigated. In such an event holding of DE is obviated under Rule 12 of the Rules. It is also trite that scanning of evidence and its proof is more strict and rule-bound under the Criminal Procedure Code, rather than in the DE. So a police official gets better opportunity inconformity with the procedural rules to be defended in the criminal trial rather than in the DE.
19. In such view of the matter on violation of Rule 15 (2) when the orders, approving the DE, is not inconformity with law, the subsequent orders, ordering a DE, and consequent punishment imposed upon applicant are without jurisdiction and are void ab initio.
19. Rule 15 (2) and its character of a mandatory provision is no more res integra and laid at rest on finality by the Apex Court in Vijay Singhs case (supra), where holding that compliance of Rule 15 (2) of the Rules ibid is in the defence of the delinquent official, the same is to be strictly followed in its true letter and spirit. The contention that delinquent official is not produced or harassed unnecessarily in a DE, approval should be accorded after due application of mind clearly establishes that the mandate as to prospects of holding a criminal case is the first option to be considered by the Joint Commissioner, as in the criminal case the procedure and the strict rules of evidence are different, where a better opportunity is accorded to the police official. The DE in such a case being secondary and once a criminal case is initiated on the same charge; Rule 12 obviates any punishment on account of the same allegations. In this view of the matter, non-examination of this issue is a failure to discharge obligation and non-compliance of rule in its true letter and spirit.
20. What is required is an approval under Rule 15 (2) by the Joint Commissioner is not on his ipsi dixit but on discharge in accordance with rules as an obligation. Accordingly, the contention that decision in Vijay Singhs case (supra) would not apply, taken by learned counsel of respondents, cannot be countenanced.
21. In the result, for the foregoing reasons, leaving other grounds open, this OA succeeds and is partly allowed. Impugned orders are set aside. Applicant shall be reinstated in service forthwith. The intervening period shall be treated for all other purposes as spent on duty except for back wages for which the doctrine of no work no pay shall apply. However, respondents are not precluded, if so advised, to proceed from the stage of obtaining prior approval. No costs.
9. The respondents in their reply have refuted all the contentions of the applicant raised in this O.A. According to them, the applicant should have taken extra precaution to ensure that the detainee did not escape from the lock up. However, he failed to do so and, therefore, he was found guilty of charge to the extent that he had performed Sentry Duty in a very callous and negligent manner, resulting the accused succeeded in escape from the lawful custody of police.
10. They have further submitted that the punishment of forfeiture of one year approved service permanently entailing proportionate reduction in his pay and treating his suspension period from 24.08.2007 to 09.06.2008 as period not spent on duty was considered as a proportionate punishment taking into consideration of the gravity of the misconduct committed by the applicant. The learned counsel for the respondents has also submitted that the inquiry was concluded in accordance with the rules and there was no procedural lapse. The appellate authority has also applied its mind and upheld the orders of the disciplinary authority.
11. We have heard the learned counsel for the applicant Shri Anil Singal and the learned counsel for the respondents Mrs. Sumedha Sharma. We have also perused the departmental records made available by the respondents. It is proved during the enquiry that the applicant was detailed as lock up sentry on 23.08.2007. It was also proved that the accused Abdul Shamshad @ Raju was lodged in the lock up at police station Dabri and he escaped from the lawful custody by bending the iron bars of the lock up gate taking the advantage of the light failure between 9.00 PM to 10.45 PM. It has also been proved during the enquiry that he had left the sentry point without informing the duty officer. The Enquiry Officer, therefore, proved that he performed sentry duty in a very callous and negligent manner, resulting the accused succeeded in escape from the lawful custody of the police. In view of the fact that the charge against him has been proved, we do not find anything illegal in the order of the disciplinary authority imposing the punishment of forfeiture of one year approved service permanently entailing proportionate reduction in his pay and treating his suspension period from 24.08.2007 to 09.06.2008 as period not spent on duty. The contention of the applicant that the respondents have not followed Rule 29 (3) of the Delhi Police (Punishment and Appeal) Rules has also no merit.
12. In view of the facts and circumstances of the case, we do not find any merit in the case and the same is accordingly dismissed. There shall be no order as to costs.
( Veena Chhotray ) ( G. George Paracken ) Member (A) Member (J) SRD