Central Administrative Tribunal - Delhi
Pramodh Kumar vs Delhi Police on 14 March, 2023
1
OA No.1724 of 2022
Court No.6 (item No. 42)
Central Administrative Tribunal
Principal Bench
OA No.1724/2022
Reserved on: 02.03.2023
Pronouncement on: 14. .3. 2023
Hon'ble Dr.Chhabilendra Roul, Member (A)
Pramodh Kumar, Sub Inspector (Exe.) Delhi Police
PIS No. 16140335, Aged 44 Years
S/o Sh. Narayan Rao,
R/o H.No. 16-1-1/1, Laxman Nagar,
Undrajavaram Road,
Tanuku: 534 211, West Godavari District
Andhra Pradesh
Group „C‟ (presently posted at II Battalion DAP,
Vikaspuri, Delhi.)
-Applicant.
(Through Advocate: Applicant in person)
Versus
1. The GNCT of Delhi
(Through Commissioner of Police, Delhi)
Delhi Police Headquarters, New PHQ Building
Jai Singh Road, New Delhi-110001.
2. The Deputy Commissioner of Police
3rd Battalion, Delhi Armed Police, Vikaspuri,
Delhi:110018.
3. The Addl. Commissioner of Police/ Armed
Police-I,
New Police Lines, Kingsway Camp.
Delhi:110009.
(Through Advocate: Mr.Amit Yadav with Ms.Ridhi Dua)
ORDER
2 OA No.1724 of 2022 Court No.6 (item No. 42) By Hon'ble Dr.Chhabilendra Roul, Member (A):-
1. Shri Pramodh Kumar, Sub-Inspector (Exe) of Delhi Police being aggrieved by the order No. 8117-
30/HAP(P-III)/3rdBn.DAP dated 19.11.2020 by DCP Delhi, 3rd BN , DAP, Delhi awarding the punishment of censure to the present applicant and also against order No. 1069-72/P.Sec/Addl. CP/AP-I dated 23.08.2021 by the Appellate Authority rejecting the appeal of the applicant against the afore mentioned punishment order.
2. The factual background of the case is as under:
The applicant was posted at Police Station Laxmi Nagar, Vigilance Branch during 2018-19 . FIR No.69/2018 u/s 363 IPC dated 11.2.2018 was registered at PS Shakarpur(Now PS laxmi Nagar) by one Prem Bahadur of Nepal regarding his missing child. The child was found (the child came back to home) on 15.02.2018. The child was produced before the court of Metropolitan Magistrate on 20.2.2018 and statement of the father of the child u/s 161 CrPC was recorded at 1700 hrs on the same day. The case was not closed by the Incharge SI, the present applicant. He 3 OA No.1724 of 2022 Court No.6 (item No. 42) was transferred out to another Unit on 25.7.2019. The Vigilance wing of Delhi Police conducted a surprise checking of Police Stations on 28.08.2019 regarding the cases pertaining to missing and kidnapping of children. During this surprise checking it was found that despite the information received regarding the child on 20.2.2018, the child was not produced to the DSLA, etc. A Show Cause Notice (SCN) was issued to SI(Exe) Pramod Kumar, the present applicant on 16.12.2019 for his alleged gross negligence, carelessness and unprofessional attitude pertaining to the missing child case as he never produced the child to DSLA and did not follow due SOP in missing child cases.
3. The applicant received the copy of the SCN and replied that the said FIR dated 11.2.2018 was cancelled by the jurisdictional court on production of the child. As the child was found and was produced before the court, there was no need to produce the child before the DSLA. The Disciplinary authority was not satisfied with his explanation and awarded the punishment of censure vide order dated 19.11.2020(one of the impugned orders) because the 4 OA No.1724 of 2022 Court No.6 (item No. 42) applicant‟s actions amounted to lack of professionalism, and negligent attitude.
4. Being aggrieved the applicant preferred an appeal before the appellate authority, who rejected the appeal vide order dated 23.08.2021 (the second impugned order). Being aggrieved, the applicant has come to this tribunal in the present OA.
5. The applicant has sought the following relief in his OA:
(i) To call for records of the case and to exercise powers under Sec.88 Sec.91 of the CAT rules of Practice 1993 and summon the entire case file of FIR No. 69/18 dated.11.02.2018, PS Shakarpur ( Now PS Laxmi Nagar) and summon witnesses mentioned in para 5.5 above for just and fair adjudication of the case.
(ii) To quash and set aside the order of censure issued by the DCP/3rd Bn. DAP, Vikashpuri, Delhi, vide impugned order No. 8117-30/HAP(P- III)/3rd Bn./Addl. C.P. /AP-I dated 23.08.2021 being illegal, irrational, and malafide.
(iii) To all the O.A.
(iv) To recommend suitable departmental action Against the respondents who discharged their quasi judicial functions with gross negligence and wanton disregard of incorrigible evidence on the case file.
(v) Award cost of the proceedings and impose suitable costs on the respondents to recompense for the inquiry suffered by the applicant and pass such other and further orders as deemed fit and proper in the circumstances of the case to meet the ends of justice.5 OA No.1724 of 2022
Court No.6 (item No. 42)
6. On admission of the OA notices were issued to the respondents and they have filed their counter affidavit to which the applicant has also filed his rejoinder to the same.
7. The applicant in his OA as well as through his counsel during arguments have tendered the following grounds in favour of seeking the aforementioned relief. The first ground is invocation of non-application of mind to the facts and circumstances of the case. The Disciplinary Authority as well as the Appellate Authority have not cited any relevant rules as to which require the production of the child before DSLA and they have merely stated that the child should have been produced before the DSLA. As the child was produced before the MM and the statement of the complainant-father of the child was recorded under section 161, there was no cause remained to produce the child before DSLA.
Second ground averred by the counsel for the applicant is the inadequate appreciation of evidence on record by the DA and the AA. As the applicant was transferred to another Unit in December 2019, it was 6 OA No.1724 of 2022 Court No.6 (item No. 42) the duty of his successor to complete the remaining procedural formalities. This fact was not appreciated by the Disciplinary Authority as well as the Appellate Authority. They have not gone through the case file at all to appreciate the work done by the applicant. The delay on the part of the applicant to complete remaining procedural formalities in the relevant missing child case was not significant. The decisions by the Disciplinary Authority and Appellate Authority are not based on facts and evidence, rather these are based on conjectures, twisted reasoning. Both of them have omitted vital facts persisting to the case.
8. To support his arguments, the counsel for the applicant cited the judgment of the Apex court in Regional Manager, U.P. S.R.T.C Vs Hoti Lal &Anr CA No 5984 of 2000 decided on 11.2.2003. In this judgment the Apex Court has also cited the judgment of the Apex Court in B.C. Chaturvedi vs Union of India and others (1995 [6] SCC 749) Union of India and Anr vs G. Ganayutham (1977[7] SCC 463), Ranjit Thakur (1987[4] SCC 611) and Om Kumar and Ors vs. Union of India (2001 [2] SCC 386). In all these judgments the issue of scope of judicial review of 7 OA No.1724 of 2022 Court No.6 (item No. 42) administrative action in respect of awarding punishment to employees was discussed at length.
9. In B. C. Chaturvedi (Supra) case, the Apex Court has further cited the judgment of the Constitution Bench in State of Orissa V. Bidyubhushan Mohapatra (AIR 1963 Sc 779).
In B.C. Chaturvedi vs. Union of India and Ors. (1995 [6] SCC 749) it was held as follows:
"The next question is whether the Tribunal was justified in interfering with the punishment imposed by the disciplinary authority. A Constitution Bench of this Court in State of Orissa v. Bidyabhushan Mohapatra (AIR 1963 SC 779) held that having regard to the gravity of the established misconduct, the punishing authority had the power and jurisdiction to impose punishment. The penalty was not open to review by the High Court under Article 226. If the High Court reached a finding that there was some evidence to reach the conclusion, it became unassessable. The order of the Governor who had jurisdiction and unrestricted power to determine the appropriate punishment was final. The High Court had no jurisdiction to direct the Governor to review the penalty. It was further held that if the order was supported on any finding as to substantial misconduct for which punishment "can lawfully be imposed", it was not for the Court to consider whether that ground alone would have weighed with the authority in dismissing the public servant. The Court had no jurisdiction, if the findings prima facie made out a case of misconduct, to direct the Governor to reconsider the order of penalty. This view as reiterated in Union of India v. Sardar Bahadur (1972 [4] SCC 618). It is true that in Bhagat Ram v. State of H.P. (1983 [2] SCC 442) a Bench of two Judges of this Court, while holding that the High Court did not function as a court of appeal, concluded that when the finding was utterly perverse, the High Court could always interfere with the same. In that case, the finding was that the appellant was to supervise felling of the trees which were not hammer marked. The Government had recovered from the contractor the loss caused to it by illicit felling of trees. Under those circumstances, this Court held that the finding of guilt was perverse and unsupported by evidence. The ratio, therefore, is not an authority to conclude that in every case the Court/Tribunal is empowered to interfere with the punishment imposed by the disciplinary authority. In Rangaswami v. State of T.N. (1989 Supp[1] SCC 686) a Bench of three Judges of this Court, while considering the power to interfere with the order of punishment, held that this Court, while exercising the jurisdiction under Article 136 of the Constitution, is empowered to alter or interfere with the penalty; and the Tribunal had no power to substitute its own discretion for that of the authority. It would be seen that this Court did not appear to have intended to lay down that in no case, the High Court/Tribunal has the power to alter the penalty imposed by the disciplinary or the appellate authority. The controversy was again canvassed in State Bank of India's case (1994 [2] SCC 537) where the Court elaborately reviewed the case law on the scope of judicial review and powers of the Tribunal in disciplinary matters and nature of punishment. On the facts in that case, since the appellate authority had not adverted to the relevant facts, it was remitted to the appellate authority to impose appropriate punishment.
A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities 8 OA No.1724 of 2022 Court No.6 (item No. 42) have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof."
10. The counsel for the applicant averred that Union of India Vs G. Ganayutham (supra) case, Wedensbury Test and the CCSU Principle were elaborated. The Wedensbury test refers to the scope of Judicial review if the case at hand passes the principles that the administrative action is (i) illegal , (ii) suffers from procedural improprieties, (iii) relevant matters not taken into account, (iv) irrelevant matters are taken into account. Under such circumstances, the administrative action will be considered as absurd or perverse or not bonafide and the administrative action is liable for judicial review. The CCSU Principle accepts the principles enunciated in the Wedensbury test but adds one more dimension that (v) if the administrative action defies logic, then there is scope for judicial review. Following these tests/principles, the Apex Court in Ranjit Thakur (supra ) case stated that if the punishment is outrageous, shocks the conscience 9 OA No.1724 of 2022 Court No.6 (item No. 42) because it is perverse or irrational and is in defiance of logic, then the courts /tribunals have scope for judicial review . In other words , the Apex court reiterated the Wedensbury and CCSU tests in Ranjit Thakur(supra) and B.C. Chaturvedi (supra) judgments.
11. The counsel for the applicant reiterated that as the Disciplinary Authority and Appellate Authority ignored the relevant facts of the case (that the child was found and statement of father u/s 161 of Crpc was recorded before the MM) were ignored and as these two authorities failed to cite any violation of specific rules and SOP, the punishment of censure amounts to arbitrariness and it defies logic and hence, these administrative action fails to pass the Wednesbury and CCSU tests. In view of this, he pleaded that the impugned orders should be quashed.
12. The Counsel for the respondents drew the attention of the tribunal to the counter affidavit filed in response to the OA. The punishment was awarded to the applicant based on the facts and circumstances of the case. He drew the attention of the tribunal to the 10 OA No.1724 of 2022 Court No.6 (item No. 42) SOP issued by the Ministry of Home affairs on 23.11. 2016. The Supreme Court of India in Bachpan Bachao Andolan vs Union of India (WPC 75 of 2012 decided on 10.5.2013 had directed formulation of a Standard Operating Procedure for cases of Missing Children. Subsequently, the Juvenile Justice (Care and Protection of Children) Act, 2015 and Rule 92 under the said Act specified procedure regarding missing child. The SOP as formulated by the Home Ministry takes care of the Apex Courts direction in the Bachapan Bachao (supra) case as well as the statutory provisions under the afore mentioned enactment. The steps to be undertaken when a child is found or recovered includes production before CWC/ JJB/ Children‟s Court followed by examination by a team of medical experts , including psychosocial experts, and a report to District Legal Services Authority , Recovery Form "R" on the Track Child Portal etc. The counsel for the respondents submitted that the applicant did not follow these steps nor did he refer the case to DSLA at all. Hence, he argued that there was lack of professionalism, disregard for SOP in missing child case. He averred that DSLA is the authority to facilitate smooth and effective rehabilitation of the child and 11 OA No.1724 of 2022 Court No.6 (item No. 42) provide any legal aid to the family. The applicant also never referred the matter to the Child Welfare Committee which could have ascertained whether the child was need of any medical care and whether child was not sexually and mentally exploited by anyone during his absence from the parental home.
13. The counsel for the respondents further averred that the above procedural lapse and non-closure of the missing child case from 20.2.2018 to 25.7.2019, nearly one and half years shows his lack of professionalism and negligent attitude. In view of these facts and circumstances, the punishment minor punishment is justified and there is proper application of mind, relevant facts and evidence have been taken into account. Hence, the administrative action does not warrant any judicial interference.
14. I have gone through the records of the case thoroughly and heard the arguments carefully. The facts and circumstances of the case and records on file do not support the averment by the counsel for the applicant that the administrative action of imposing minor punishment of censure to the applicant suffers from failure of the Wednesbury test and CCSU 12 OA No.1724 of 2022 Court No.6 (item No. 42) principles. By merely asserting that the DA and AA failed to apply their mind to the facts of the case and allegation that they did not took cognizance of the fact that the child was found and produced before the relevant court are not sufficient to attract the failure of these tests. As the counsel for the respondents cited the SOP issued by the Home Ministry in case of missing children, there are a host of other follow up actions required in missing children‟s cases. Apart from the production of the child before the MM, the matter definitely requires reference/reporting to the Child Welfare committee(CWC) and the DSLA for appropriate follow up action on their part. Finding the missing child and alleged satisfaction of the parent are not sufficient in these cases. That is reason, the SOP mentions that the CWC/ DSLA require to refer the child to a team of medical experts to rule out sexual assault, mental and physical torture and any other relevant matter requiring legal counseling. Furthermore, the case requires a closure thereafter. The Vigilance team of Delhi police found that the case was never closed and the relevant steps for closure was not initiated even after production of the child before MM and the cancellation of the FIR .
13OA No.1724 of 2022 Court No.6 (item No. 42)
15. During judicial review, the courts and tribunals are not supposed to hold the proceedings as an appellate authority to re-appreciate the evidence on record, facts and circumstances afresh and arrive at the possibility of another interpretation. In the case of T.N.C.S. Corpn. Ltd. and Ors. (Appellants) v. K. Meerabai (respondent) (2006) 2 SCC 255, the Apex Court has rightly held that :
"It remains trite that the scope of judicial review of the disciplinary proceedings by the Court, particularly in a petition under Article 226 of the Constitution of India, is ordinarily confined to the decision making process and does not extend to the decision itself."
16. In the instance case, there is no failure of the principle of natural justice. The Wednesbury and SSU tests/ principles point to limited scope of intervention by courts/tribunals in case of failure of those tests /principles. The DA and AA are supposed to base their findings on preponderance of evidence in the case and there is limited scope for judicial review. In B.C. Chaturvedi vs. Union of India (1995) 6 SCC 749, the Hon'ble Apex Court has delineated the scope of judicial review in a disciplinary proceeding as under: 14 OA No.1724 of 2022
Court No.6 (item No. 42) "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 the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether the rules of natural justice are 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 or 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 officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at its 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 or whether 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".15 OA No.1724 of 2022
Court No.6 (item No. 42)
17. In another judgement reported as Union of India v. P.Gunasekaran, the Apex Court held that while re- appreciating evidence the High Court cannot act as an appellate authority in the disciplinary proceedings. The Court held the parameters as to when the High Court shall not interfere in the disciplinary proceedings:
"13. Under Article 226/227 of the Constitution of India, the High Court shall not:
(i) re-appreciate the evidence;
(ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;
(iii) go into the adequacy of the evidence;
(iv) go into the reliability of the evidence;
(v) interfere, if there be some legal evidence on which findings can be based.
(vi) correct the error of fact however grave it may appear to be;
(vii) go into the proportionality of punishment unless it shocks its conscience."
18. Both the aforementioned judgments have in principle reiterated the Wednesbury Test/CSSU principles. In State of Karnatak V. N. Gangraj (2020) 3 SCC 423, the Apex Court again held that "The disciplinary authority agreed with the findings of the enquiry officer and had passed an order of punishment. An appeal before the State Government was also dismissed. Once the evidence has been accepted by the departmental 16 OA No.1724 of 2022 Court No.6 (item No. 42) authority, in exercise of power of judicial review, the Tribunal or the High Court could not interfere with the findings of facts recorded by re- appreciating evidence as if the Courts are the Appellate Authority."
19. The applicant in his OA and his counsel during arguments have failed to assert how the Wednesburry Test and CCSU principles failed in the instant case. I do hold that these are mere allegations or assertions without sufficient material on record. On the other hand, the relevant due procedure in such important case of missing child, after the child was found and produced before the MM, was not followed. Such lapses sometimes may prove detrimental to the physical and psychological well-being of the child found after missing from the parental home for considerable period.
20. In view of the above, there is no merit in the OA and hence, it is dismissed.
All pending MAs are also disposed of accordingly.
(Dr. Chhabilendra Roul) Member (A) /mk /