Central Administrative Tribunal - Delhi
Insp Dharam Pal vs Union Of India (Uoi) Through ... on 29 March, 2007
ORDER V.K. Agnihotri, Member (A)
1. In this OA the applicant has sought quashing and setting aside of the order of the Disciplinary Authority dated 22.01.2004 and of the Appellate Authority dated 31.01.2005 whereby he was awarded the punishment of censure. He has further sought to declare the procedure of awarding punishment of censure without holding a departmental enquiry ultra vires of the Parent Act as well as of the Constitution of India.
2. The brief facts of the case are that the applicant is working as Inspector in Delhi Police. In accordance with the powers and procedure laid down under Sections 154/158 of Cr. P.C., after the completion of investigation, either a Charge Sheet is submitted in the Court or, where during investigation no clue of the criminal is found, SHO submits a report for closure of the investigation to the concerned Magistrate or if, after complete investigation, no cognizable offence is made out, investigation is sought to be closed by the Police and a request for closing of the case as cancelled is submitted to the Magistrate for final orders. In the month of September, 2003, during a routine fortnightly meeting of the SHOs held at the office of the concerned DCP, New Delhi to discuss the status of crimes it was found that in respect of certain SHOs the number of the untraced/cancelled cases, for the fortnight 16.09.2003 to 30.09.2003, had remained the same. A Show Cause Notice (CSN, for short) dated 22.10.2003 was issued in this regard as follows:
During the perusal of F.N. Diary for the fortnight ending 16-9-2003 to 30-09-2003, it has come to notice that number of pendency of cancelled/Untrace cases remain same as was in the previous fortnight and the disposal of the case files during the F.N. remained NIL in respect of Police Stations, Pt. Street, Mandir Marg, Chanakya Puri, and Tughlak Road, despite repeated instructions of the undersigned from time to time to dispose off the case file on the merit at the earliest. It clearly shows that SHOs of the above mentioned police stations are not taking the matter of pending case files seriously and did not make sincere efforts to dispose off the same, which was a serious lapse on their part.
The above-mentioned act on the part of Inspr. Surya Kant Patila, SHO/Pt. Street, Inspr. Dharampal, SHO/Mandir Marg, Inspr. Sanjeev Gupta, SHO/Ch.Puri and Inspr. Suresh Chand Kaushik, amounts to gross negligence, carelessness, dereliction of duty and lackadaisical attitude towards their responsibilities.
Therefore, Inspr. Surya Kant Patila, SHO/Pt. Street, Inspr. Dharampal, SHO/Mandir Marg, Inspr. Sanjeev Gupta, SHO/Ch.Puri and Inspr. Suresh Chand Kaushik, SHO/Tughlak Road, are hereby called upon to show cause as to why their conduct should not be censured for the above-mentioned lapse. Their written reply, if any, should reach to this office within 15 days from the date of its receipt, failing which it will be presumed that they have nothing to say in their defence and the matter will be decided on its merit ex parte.
3. On 20.11.2003, vide his letter dated 19.11.2003, the applicant submitted his reply. Thereafter the impugned order dated 22.01.2004 was issued, which inter alia stated:
I have carefully gone through the written reply submitted by the Inspr., all the relevant documents placed on file and he was also heard in personal hearing. He mainly pleaded that due to fresh posting of Sh. D.K. Sharma after his promotion, being a new judge in criminal he needs some time to streamline the working of the court, the lapse was occurred. He says that he has already disposed off 3300 cases and concerned judge is not kind enough to accept the untraced/cancelled case in the mentioned fortnight, while the record speaks to the contrary, he has disposed 25 cases of the period after 2000 and only 2 case before 2000. Such a senior officer taking this kind of flimsy defence for his action is something that amounts to unbecoming of an officer and shows one's inaction in disposing cases. Hence, I award him a punishment of censure.
4. On 03.03.2004, the applicant preferred an appeal before respondent No. 2 against the above order passed by the Disciplinary Authority, which was rejected, vide order dated 30.01.2005. Hence the OA.
5. On 28.08.2006, the applicant was directed by this Tribunal to submit a detailed affidavit showing how the pendency of undisposed cases has decreased while he was incharge of Mandir Marg Police Station. The applicant accordingly filed an affidavit on 11.09.2006, which is part of the records.
6. The applicant has stated that before any case is closed as untraced or cancelled, the police officer incharge is required to submit his report to that effect, through a Gazetted Officer, for being sent to the concerned Magistrate in whose jurisdiction the case falls. The Gazetted Officer may also ask for reinvestigation, if he so desires Under Section 158(2) Cr.P.C. Thereafter, it is the Magistrate concerned who looks at the entire facts and circumstances of the case including the report of the police and is then required to pass a final order of cancellation or closure of the case as untraced and only thereafter the case is closed as untraced/cancelled. Thus, it is only within the power of the concerned Magistrate to close the case or cancel it. The applicant has no power to close the investigation or to close the case himself.
7. The applicant, in the context of the present episode, has submitted that the preceding Presiding Officer of the concerned Court had remained on leave for about 15 days and then there was a change of the Presiding Officer of the concerned court. Thus, there was a backlog of cases and pendency arose in the court. The new Presiding Officer of the Court was not initially dealing with criminal cases but was assigned some other work. Therefore, he took some time to take note of untraced/cancelled cases. But all this while, the applicant as duty bound, used to attend the Court to look after the cases of closure/cancellation with full diligence.
8. The applicant has further stated that the respondents did not apply their minds to the facts of the case and, therefore, impugned orders are perverse, suffer from non-application of mind and have been passed with mala fide intention in order to spoil the career of the applicant. He has also averred that the punishment of Censure can adversely affect the future career/promotion prospects of the applicant and hence imposing of the punishment, without holding a departmental enquiry, is against the rule of law as well as the principles of natural justice.
9. The respondents have stated that is the course of perusal of F.N. Diary for the fortnight ending 30.09.2003, it came to notice that the number of pendency of cancelled/untraced cases remained the same as in the previous fortnight; and, thus, the disposal of case files during the F.N. remained NIL in respect of Police Station/Mandir Marg, where the applicant was posted as SHO, despite repeated instructions, from time to time, to dispose of the case files on merit at the earliest. It clearly showed that SHO/Mandir Marg was not taking the matter of pending case files seriously and did not make sincere efforts to dispose them of, which was a serious lapse on his part. The written reply submitted by the applicant was not found satisfactory and as such the Show Cause Notice, issued in this regard, was confirmed and the conduct of the applicant was censured.
10. In his rejoinder the applicant, apart from reiterating and elaborating on the averments made in the main application, has also challenged the impugned order on the ground that the other codelinquents, viz., SHOs of Parliament Street, Chankaya Puri and Tughlak Road, have not been given any punishment and their cases have been closed.
11. In his additional affidavit, the applicant has further stated that from the concerned PS, the applicant could get only the details of these few cases from which it can be easily averred that these cases were declared closed by the respective SHO's [not the applicant] at least 3-4 years before the applicant joined the concerned PS. The applicant had also taken steps to get the backlog cleared as is clear from the fact that when the applicant joined as SHO, total of 3236 cases were pending orders from the competent Court, whereas when the applicant left the PS as SHO in June, 2004, only 357 cases were left pending.
12. He has also averred that the SCN was given to 4 SHOs on the same ground. Two of them did not even file any reply. Another had filed a reply giving the same reason as given by the applicant but his plea was accepted and his SCN was withdrawn. Thus the other three SCNs were withdrawn, and the applicant alone has been punished illegally and has been discriminated in the matter of punishment.
13. During the course of oral arguments, Shri Arun Bhardwaj, learned Counsel for the applicant, stated that it so happened that the period for which the disposal of cancelled/untraced cases was reviewed, there was a new Presiding Officer at the concerned court, who wanted to have some time to settle down on account of change in assignment and, therefore, the problem of no disposal arose. However, if one looks at the data of overall disposal over a longer period, as provided in the additional affidavit, it would be clear that the applicant was not generally lax in such matters. He further argued that there was discriminatory treatment against the applicant insofar as the other three SHOs, who were served similar SCNs, were let off while taking a lenient view of the non-performance by the same Disciplinary Authority.
14. Mrs. Sumedha Sharma, learned Counsel for the respondents, on the other hand, stated that the applicant should have brought the matter relating to the change in the Presiding Officer of the Court etc. to the notice of the higher authorities, which he failed to do. She further stated that even though the other SHOs were not censured, they were warned and the warning was placed in their confidential rolls.
15. We have heard the learned Counsel for both the parties and perused the material on record.
16. From a perusal of the explanation given by the applicant to the SCN, it is very clear that he had, inconsiderable detail, explained the circumstances leading to the lack of disposal of cancelled/untraced cases in the following words:
Sir, It is humbly submitted that I have personally met the Hon'ble Judge Sh. Sanjiv Jain who has been recently taken over from Shri D.K. Sharma after his promotion and every time the Hon'ble Judge told me that being a new Judge in criminal he needs some times to streamline the working of the Court as the predecessor remained on leave for about 15 days causing a back-log of the cases. Due to the reason no untrace or cancelled cases was cleared by the Hon'ble Judge during the month of September or October 2003. Now again the request has been made to the Hon'ble Judge who agreed to bring 8/10 case files on each Saturdays at 3.00 p.m. Thus 25 cases have been cleared during this first fortnight of November 2003...
However, it was taken to mean that he was putting the blame on the courts, which perhaps was an extreme view in the situation.
17. As regards the discriminatory treatment given to the applicant vis-a-vis other three SHOs, we find from the data supplied by the applicant in Annexure A-3 (Colly.) that the performance of the applicant was not worse than that of other SHOs during the period preceding and succeeding the review done by the authorities. Similarly, the data provided in Annexure A-6 with the additional affidavit also shows that the applicant has not been lax in the performance of his duties.
18. The relief sought for declaring the procedure of awarding punishment of censure without holding a departmental enquiry ultra vires was not pressed during the oral arguments.
19. Taking the totality of facts and circumstances of the case into consideration, we come to the conclusion that this is a case of `no evidence' as well as of `discriminatory treatment' against the applicant.
20. In the result, the OA is allowed and the impugned orders dated 22.01.2004 and 31.01.2005 are quashed and set aside. There will be no order as to costs.