Central Administrative Tribunal - Delhi
Head Constable Dharam Pal vs The Commissioner Of Police on 23 April, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 1780/2011 New Delhi this the 23rd day of April, 2012 Honble Mr. Shailendra Pandey, Member (A) Honble Mr.A.K.Bhardwaj, Member (J) Head Constable Dharam Pal S/o Shri Banwari Lal No.85/NW (Now 8551/DAP), P.I.S. No. 28822552 P.T.S.Malviya Nagar. Applicant (By Advocate Shri Sachin Chauhan) VERSUS 1. The Commissioner of Police, Police Headquarters, I.P.Estate, MSO Building, New Delhi. 2. Special Commissioner of Police, Armed Police, through Police Headquarters, I.P.Estate, MSO Building, New Delhi. 3. Dy. Commissioner of Police, 7th Bn. DAP, through Police Headquarters, I.P.Estate, MSO Building, New Delhi. .. Respondents (By Advocate Mrs. Renu George ) O R D E R Honble Mr. A.K.Bhardwaj, Member (J):
Contribution by Police officials in separating a one and half year child from his natural parents and inclination of superior police authorities to take action against defaulting police official only when Guardianship Court directed police Commissioner to inquire into the matter after over four years, reminds us duty of adjudicators/ Judges to show the executive the mirror of its responsibilities. Having utmost faith in Governance of State, civilized and law abiding citizens travel several hundreds of kilometers with their children having faith in Governance and Govt. servants, particularly in police forces regarding their security and safety. Natural parents of one and a half years child could not have imagined that their child brought to a place like police station would be taken too far that they will have to fight legal battle to take his custody. Little efforts by police officials at appropriate stage to locate natural parents of an innocent could have saved the child from trauma he suffered. It is for superior police authorities to introspect how the SHO could be let off in the matter on the ground that it was for additional SHO to supervise the cases of missing persons, as if the additional SHO was not to work under the over all supervision of SHO. To make the situation worst Additional SHO was not even subjected to DE.
2. The object and purpose of the State evolved in this country from time immemorial has been that it is paramount duty of the State to ensure that individual enjoys wealth and every kind of pleasure without transgressing the law (Dharma). The ideal placed before the State under the Ancient Indian Constitutional Law (Rajadharma) is that the state must strive for the happiness of people. This ideal has been forcefully expounded by Kautilya in his Arthashastra in following words:-.
Written in Hindi handwritten In the happiness of his subjects lies the happiness of the ruler; in their welfare, his welfare; whatever pleases him the ruler shall not consider as good but whatever pleases his subject, the ruler shall consider as good.
Said directive of Arthashastra enables the enforcement of law for ensuring the upliftment and welfare of the people. For the efficient administration of the affairs of the State and implementation of the above directive, elaborate administrative set up with more than twenty five departments was required to be created. Provisions regarding the qualification for appointment were also required to be created. Despite radical discontinuity in historical content, the preamble to the Constitution of India reiterates these lofty principles of State policy, as the expression of the sovereign will of the people of India. The preamble declares that the aims and objects of the Constitution are to ensure to the people of India, social, economic and political justice, liberty of thought, expression, belief, faith and worship and equality of status and opportunity to promote fraternity among the people of India assuring the dignity of the individual and the unity of nation. In order to achieve this objective, the Indian Constitution has adopted a federal structure of government and has made provision for the Constitution of the Union and the State. Both at the Union and the State level, the Constitution distributes the sovereign power to the legislature, executive and the judiciary. Further, the Constitution provides for setting up of democratic form of government. The power of the Union and the State is vested in the representative elected by the people on the basis of adult suffrage. The Constitution confers enormous power on the Union and the State legislatures to pool the resources of the country and places the same at the disposal of the union and the states and also confer enormous power on the union and states to enable them to fulfill the aim and object of the Constitution. Part IV of the Constitution sets out the fundamental principle for the governance of the country and declares that it shall be the duty of the state to apply these principles in making the laws. The union as well as the states are entitled to constitute various local and other authorities for the purpose of running local administration or for the fulfillment of any specific public purpose, enormous resources are placed at their disposal and power is conferred on them to achieve the object for the fulfillment of which they are constituted. Although the responsibility of formulating policy and programme for the achievement of the aim and object of the Constitution rests with the elected representative or the person nominated as the case may be. But the efficient administration of the government and the successful execution of the policy, scheme or programme or plan of the State or other authority substantially depends upon the member of the Central or the State services or those who are in the services of local or other authority. They are the person who are not only expected to execute the policy and programme of the state into action but some of them, holding high positions, have also a great responsibility even in the matter of taking policy decision. It is the service personnel who are appointed to discharge specific duty and responsibility in connection with the activity relating to the different departments of State, who come into contact with the people directly. The common man looks forward to these public servants through whom he seeks the assistance to solve his day to day problem which he has a right to get from the state. The success of all policy and programme of the state substantially depends on its services. Therefore, the service of honest and sincere cadre officers is a pre-condition for achieving the aim and object of the Constitution. Public servants are expected to exercise their power in discharge of their duty and responsibility, honestly, sincerely, devotedly and impartially without fear or favour. Policing in democratic society is governed by the rule of law and is indeed a difficult and challenging task. The Indian Police force was trained in the past to serve the objective of colonial rule and has not yet been granted the autonomy resources and training for professionalization in a democratic millieu. Its performance has not been entirely disappointing. Compared with many other departments of the government, the police by and large have served the public good even in adverse circumstance. What is disconcerting today is the steady deterioration of standards of police, the increasing lawlessness amongst the policemen themselves and the attitude of complacency and complicity amongst the leadership in police organization. With the prevailing attitude and approach in the police force, there is not much hope that the people will get better services from the police in the immediate future. Since the purity and efficiency of the criminal justice system is largely dependent on police who feed the system, the future seems bleak for criminal justice in general. Certain causes for popular dissatisfaction with the police, as enumerated by N.R.Madhava Menon, once Vice Chancellor, National University of Judicial Sciences, can be narrated as under:-
1. Police are the principal violators of the law and they get away with impunity.
2. Some sections of the police are in league with anti social elements. Consequently they indulge in selective enforcement of the law.
3. Police exhibit rude behaviour, abusive language and contempt towards courts and human rights; they indulge in all forms of corruption.
4. Depending on the socio-cultural status, economic power and political influence of people who approach them, police adopt different attitudes violating equality and human dignity.
5. Police are either ignorant of the precepts of human rights or they deliberately disregard them in the matters or arrest, interrogation, searching, detention and preventive policing.
6. Given the dismal record of prevention and successful investigation of crime, the police lack accountability in protection of life and property.
7. While crimes are getting sophisticated, the police are becoming less professional. There is no evidence of a collective desire within the police organization to redeem its public image.
8. The police are insensitive towards victims of violent crimes. They sometimes behave rudely with victims, as if they are responsible for their fate.
9. At least a section of policemen think of human rights as antithetical to effective law enforcement. They blame the law, lawyer and courts for their own inefficiency.
10. Of late, some policemen have publicly shown leniency towards fundamentalists and terrorists. It is not the intention of the Court to prosper evidence or argument to prove or disprove any of above perception. However, no honest person within or outside the police could totally deny the aforementioned causes. Of course, they can give alibi and explanation that may or may not be acceptable to the public. Well thinking person should acknowledge the existence of such perception in a wide spectrum of the citizenry and must work out strategies to remove them progressively in the interest of public services and professionalism. Those who do not want the situation to change will continue to provide excuses and explanation accusing others in society or in the criminal justice system for the malady. The tragedy is that unlike other departments of the government, if police tends to become lawless, the very foundation of democracy is in jeopardy, development subverted and the countrys integrity compromised. Hence, there is urgency to reform the police and their style of functioning. A lot can be achieved by exchanging public perception and improving strength of police, if the leadership within the police organization is fully committed to reform. After all, every profession has the primary responsibility to discipline its members and maintain a code of ethical behavior by internal mechanisms and by peer group. The police are intrinsically disciplined and superior command and have lot of power and control over their subordinates. If this situation is to be put to good use, the superior should be above board and transparent in their dealing. It is essential that reform in the organization starts from above and clear signal of good behavior are sent down to all the rank. Organizational behavior is largely the outcome of training and continuing education. Police training is archaic in content and method. The emphasis is still more on muscle than on the mind. Human rights, if at all, form an insignificant module in the training programme and there is hardly any emphasis on human right in the training of Constables, who form 85 percent of the posts. A subculture, inimical to democratic policing, pervades the organization and is perpetrated due to indifference or connivance of senior. Respect for human right is not rewarded. If the leadership itself is doubtful about the imperatives of human right in policing, and if they disregard its importance in the training of subordinate officer, it is pointless to expect change in the behavior of ordinary Sub-Inspector and Constable. Another reform that can be brought about by the police themselves is with respect to the adoption of fair, quick and responsible methods of redress for complaint against the police. The system has to be institutionalized and integrated with police role and responsibility. According to an old adage, every society gets the police it deserves. After all policemen come from the same society and reflect the attitude and behavior that is found in society. How respectful is the average citizen with regard to human right of fellow citizens? The void resulting from the lack of a clear cut grade for police conduct was filled in 1960 when a Code of Conduct for the police was adopted on the recommendations of the Conference of I.G.Ps through the I.B (MHA). Said code has been adopted to raise the ethical standards in police services and raises its professional standing. The Code with its explanation is the corner stone for Police Officer in India. Certain silent feature of the same read as under:
1. The police must bear faithful allegiance to the Constitution of India and respect and uphold the rights of the citizens as guaranteed by it.
The first part does not require explanation and the police, like all other government servants, must be faithful to the Constitution of India. The second part is important in the sense that police must realize that when they prevent crime and disorder they do it in order to uphold the fundamental rights of the community in general. That is the foremost objective and if by any action they deprive a person of his legitimate rights they have failed in their work. Therefore, they must not only respect the rights but they must also uphold them.
2. The police are essentially a law enforcing agency. They should not question the propriety or necessity of any duly enacted law. Thy should enforce the law firmly and impartially, without fear or favour, malice or vindictiveness.
3. The police should recognize and respect the limitations of their powers and functions. They should not usurp or even seem to usurp the functions of the judiciary and sit in judgment on cases. Nor should they avenge individuals and punish guilty.
4. In securing the observations of law or in maintaining order, the police should use the methods of persuasion, advice and warning. Should these fail, and application of force becomes inevitable, only the absolute minimum in the circumstances should be used.
5. The primary duty of the police is to prevent crime and disorder and the police must recognize that the test of their efficiency is the absence of both and not the visible evidence of police action in dealing with them.
The first needs no reiteration. The efficiency of the police does not lie in the ostentatiousness with which any work is done, or the show of police power, but in being able to strike at the root and prevent the occasions which necessitate the use of police power. It is erroneously held that good detection alone constitute good work. But far better than detection is prevention.
6. The police must recognize that they are members of the public, with the only difference that in the interest of the community and on its behalf they are employed to give full time attention to duties which are normally incumbent on every citizen to perform.
7. The police should realize that the efficient performance of their duties will be dependent on the extent of ready co-operation they receive from the public. This in turn, will depend on their ability to secure public approval of their conduct and actions and to earn and retain public respect and confidence. The extent to which they succeed in obtaining public co-operation will diminish proportionately the necessity of the use of physical force or compulsion in the discharge of their functions.
8. The police should be sympathetic and considerate to all people and should be constantly mindful of their welfare. They should always be ready to offer individual service and friendship and render necessary assistance to all without regard to their wealth or social standing.
Apart from doing their duty as law enforcement officers the police must be helpful to the public on all occasions and consider this to be as much their duty as it to enforce a particular law. This assistance should be given to all without making any discrimination between poor and rich.
9. The police shall always place duty before self, should remain calm and good humoured whatever be the danger or provocation and should be ready to sacrifice their lives in protecting those of others.
10. The police should always be courteous and well-mannered; they should be dependable and unattached; they should possess dignity and courage; and should cultivate character and the trust of people.
These are qualities which people want to see in the police. Each of them is necessary and without them the police can never make any good impression on the people.
11. Integrity of the highest order is the fundamental basis of the prestige of the police. Recognizing this, the police must keep their private lives scrupulously clean, develop self- restraint and be truthful and honest in thought and deed, in both personal and official life, so that the public may regard them as exemplary citizens.
Honest is the highest qualification and must be practiced in all circumstances and in any eventuality every other quality flow from this. People will co-operate readily, if they know the police to be honest
12. The police should recognize that they can enhance their utility to the administration and the country only by maintaining a high standard of discipline, unstinted obedience to the superiors and loyalty to the force and by keeping themselves in a state of constant training and preparedness.
Discipline, obedience, loyalty these are essential in any large force entrusted with the duty of enforcing law and order. Efficient performance of this duty also requires the police to improve their knowledge and training and to remain mentally and physically alert and prepared at all times. In the present case the aforementioned comments assume relevant. An abandoned child was found vide DD No.12 PP Matiala and when he was required to be sent to Bal Vihar Orphanage police sent him to another Orphanage. Neither the child was produced before CWC/learned Metropolitan Magistrate nor the requisite guideline was followed according to mandatory provision. The child was not got photographed nor was any intimation to Missing person squad. Police failed to deposit the child to some recognized children home or children home run by State Government or aided institution. Even after sending the child to the Orphanage, the matter was not followed up and was dealt in a very casual manner. Required efforts were not made to trace the parents of the child. The DD No.12 PP Matiala, Police Station, Uttam Nagar was kept pending and no further DD entry was lodged to reflect development. On 8.7.2004, the parents of the child, namely, Shri Dinesh Kumar and his wife Smt. Babita came to PP Matiala to enquire about their son and got a missing DD entry lodged vide DD No.42 dated 8.7.2004. In the meantime, on 29.02.2004, Mr. Anil Jindal and his wife Vandana Jindal had adopted a 1 = year old child. When the natural parents of the child, namely, Shri Dinesh Kumar and his wife were apprised of said fact, they requested Mr. Anil Jindal to return back their child, however, Mr. Jindal refused to do so. Thus, Mr. Dinesh Kumar Sharma filed a petition before the Court of Shri Surender S.Rathi, Guardian Judge, Tis Hazari, Delhi. Guardian Judge vide his order dated 10.3.2008 directed the Commissioner of Police that a detailed enquiry be conducted into the matter by an officer not below the rank of ACP to ascertain the conduct of the local police officers and their hierarchy also to ascertain the function of Society/NGO, i.e. respondent no. 1 in the petition so as to see if there was some criminal conspiracy between them or not. In the enquiry the roll of police was also to be ascertained. The Guardian Judge also ordered that during the enquiry the statements of supervisory officers of the local police i.e. Area ACP and DCP concerned was also to be recorded so as to ascertain if they had given any official sanction to the NGO involved. During the enquiry, ACP/P.G. Cell/West Distt. had recorded the statement of the following persons:-
1. Shri Baba John Dayal, the founder President of Bal Vihar Orphanage. Sadhu Sunder Singh Society (Respondent No.1) (Address D-2/100 A Bengali Colony, Palam Road, Mahavir Enclave, New Delhi}
2. Shri S.P.Rai, Vice President of Bal Vihar Orphanage Centre R/o H.No. 1220, Sector-08, R.K.Puram, New Delhi.
3. Shri Anil Jindal (Respondent No. 2) and Mrs Vandana Jindal ( Respondent No. 3) Both residence of H.No. 1/77, West Punjabi Bagh, New Delhi.
4. Shri Uttam Singh, Principal Jindal Public School, Dashrath Puri, Palam Road, Dwarka, New Delhi.
5. Statement of Babita mother of the child in question w/o Shri Dinesh Kr Sharma R/o K-1/171-A, Mohan Garden, Uttam Nagar, New Delhi. However the statement of Mr. Dinesh Kumar, father of the child could not be recorded for want of his availability.
6. Statement of Shri Gurcharan Singh (Retd. ACP/Delhi Police) then ACP/Sub-Div, Tilak Nagar R/o WZ-106/67, Rajouri Garden, New Delhi.
7. Statement of Inspr Surender Singh No. D-1/978 then posted as SHO/Uttam Nagar, presently posted at 7th Bn. DAP, PTS, Malviya Nagar, New Delhi.
8. Statement of SI Raj Pal Singh, No. D-3167 Legal Cell/PCR Delhi, then posted as I/C PP Matiala PS Uttam Nagar.
9. Statement of ASI Roop Prakash, 5147-PCR (South-West one PCR, PS Maya Puri, New Delhi) then posted at PP Matiala, PS Uttam Nagar.
10. Statement of HC Dharam Pal Singh, 85-NW PS Prashant Vihar, North West Distt. Delhi then posted at PP Matiala, PS Uttam Nagar, Delhi. However, the statement of Shri Satish Golcha, IPS, then DCP concerned could not be recorded as he is on deputation to CBI.
On the basis of statement of aforementioned persons, the enquiry officer i.e. ACP/PG Cell, West District concluded that no procedural lapse was found on the part of local police because at the relevant time there was no reference/guideline from any quarter concerned with the local police which could guide them to any particular NGO/Govt body for handing over the abandoned child and in the interest of security of the child in question the local police handed over the child to Bal Vihar Orphanage Centre which was nearest to police post Matiala. In the said report it was categorically viewed that no involvement of any type of local police was found regarding adoption of the child in question. The said report is dated 5.5.2008. After this date, Deputy Commissioner of Police, DE Cell, Delhi issued charge sheet dated 19.08.2009 making following allegations against HC Dharam Pal, No. 85/NW i.e. applicant in present case:-
(i). He sent the child to another Orphanage through ASI Roop Parkash No. 5147/PCR.
(ii). Neither the child was produced before the CWC/Ld.MM nor the requisite guideline was followed according to mandatory provision.
(iii) The child was not photographed nor was any intimation sent to missing person squad.
(iii) He failed to deposit the child to some recognized children home or children home run by State Government or aided institution.
(iv) After sending the child in the orphanage, he did not bother to follow up the matter and dealt the case in a very casual manner.
(v). He did not make necessary efforts to trace the parents of the child.
(vi). The relevant DD no. 12 PP Matiala PS Uttam Nagar was kept pending and no further DD entry was lodged as token of its development.
ASI Roop Parkash, no. 5147/PCR was also charged for not ensuring that the applicant followed the procedure laid down on the subject of abandoned child or otherwise, besides other charges leveled against him. SI Neeraj Kumar, No. D-3402 was also implicated for not being aware about the incident/matter taken place within the jurisdiction of police post Matiala and not going through the daily diary on regular basis which was his primary duty for guiding/advising to subordinate officers/men about each and every matter. Inspector Surender Singh being SHO/Uttam Nagar, was charged for not supervising the matter properly and failing to ensure that the staff working under him was following the provision of J.J.Act while dealing with the case of abandoned child. Common charge sheet issued to applicant, ASI Roop Parkash, SI Neeraj Kumar and Inspector Surender Singh No. D-1/978 reads as under:-
1. HC Dharam Pal, No.85/NW. On 18th Feb. 2004, while your were posted in PP Matiala, PS Uttam Nagar an abandoned chilled was found vide DD No.12 PP Matiala and the said child required to be sent to Bal Vihar Orphanage. You sent the child to another orphanage through ASI Roop Parkash, No. 5147/PCR. Neither the child was produced before the CWC/Ld.MM nor the requisite guidelines were followed according to the mandatory Person Squad. You also failed to deposit the child to some recognized Children Home or Children run home run by State Government or aided institution. Even after sending the child in the orphanage, you did not bother to follow up the matter and dealt the case in a very casual manner. It is further stated that you did not make necessary efforts to trace the parents of the child. The relevant DD No. 12 PP Matiala Police Station, Uttam Nagar was kept pending by you and no further DD entry was lodged as token of its development.
2. ASI Roop Parkash, No. 5147/PCR. On 18th Feb 2004, while posted in PP Matiala PS Uttam Nagar, HC Dharam Pal No. 85/NW handed over an abandoned child to you to deposit the same in Bal Vihar Orphanage. You deposited this child with another two in the Orphanage. You did not bother to produce the child before the CW or Ld.MM. You also failed to deposit the child to some other recognized Children Home or Home Run by State Government or aided voluntarily institution. As an experienced Police Officer, you should have ensured whether HC Dharmpal followed the procedure laid down on the subject of abandoned child or otherwise. Later on, the parents of the child lodged a missing report at PP Matiala which was entrusted to you vide DD No.42 dated 08.07.2004, but you failed to take proper action to restoring the child to his natural parents.
3. SI Neeraj Kumr,No.3402. You looked after the work of I/C PP Matiala from 17.02.2004 to 25.02.2004. Being I/C PP, it was imperative on your part to be aware about the incidents/matters taking place in the jurisdiction of the police post Matiala and in PP Matalia. You were supposed to go through the daily diary on regular basis and it was your prime duty to guide/advise your subordinate officers/Men about each and every matter but you were not even aware of the above mentioned incident of the abandoned child found vide DD No. 12 dated 18.02.2004 PP Matiala. It was your duty as I/C PP Matiala to ensure that the staff working under your supervision follow the provisions of JJ Act while dealing the cases of abandoned children but you failed to perform your responsibilities. Thus, there is a lack of supervision on your part.
4. Inspr. Surender Singh, No. D-1/978. You remained posted as SHO/Uttam Nagar till 21.02.2004. An abandoned child was found on 18.02.2004. Being SHO, it was obligatory on your part to supervise the matter properly and ensure that the staff working your you are following the provisions of JJ Act while dealing the case of abandoned child as referred above but you failed to perform your responsibilities. It lacks of supervision on your part. A common departmental enquiry was conducted against the applicant and other charged officials. During the enquiry, Raj Pal No. D/3168, Inspector PS Sarai Rohilla, was examined as PW-1 who submitted that on account of his daughters marriage, he had to proceed on leave w.e.f. 18.2.2004 as sanctioned by ACP, Tilak Nagar thus in his absence, SI Neeraj Kumar was to look after the work of i/c PP East Uttam Nagar which was well within notice of SHO. As is recorded in the report of Enquiry Officer in DD no. 39 dated 17.02.04 PP Matliala on behalf of ASI Roop Parkash, a report had been lodged revealing that Addl. SHO/SHO were present on the spot and had been apprised with the situation. Vide DD No. 21 dated 18.02.2004 PP Matiala, it was revealed that a lost child had been handed over to Sadhu Sunder Singh Welfare Society, Bangali Colony, Mahavir Enclave, New Delhi As per DD entry no. 14 dated 18.02.2004, PP Matiala, ASI Roop Prakash had noted that a child found from Shivaji Enclave, whose father was dead, was being taken to Bal Vihar. Shri Anil Jindal who was examined as PW-5 had deposed during the enquiry that on 27.02.2004, he had adopted a child from an orphanage, Sadhu Sunder Singh Society, Bangali Colony, Mahavir Enclave, Delhi as no one had enquired about the child for 2 to 4 months. According to statement of Shri Anil Jindal he had applied to District Judge, Tis Hazari to take legal custody of the child by filing petition no. 430/2004. However, when the natural parents of child claimed the custody of the child, he had handed over the same to them in the presence of SHO/Uttam Nagar. Shri S.P.Rai from Bal Vihar Orphanage Centre was examined during the departmental enquiry as PW-6. He submitted that police officer from PP Matiala had dropped an abandoned child named Preetik in the Orphanage for proper care. Thereafter the custody of child was given to Mrs and Mr. Jindal. Shri Dinesh natural father of missing child, who was cross examined as PW-7, confirmed the missing and restoration of custody of child to him. Inspector Surender Singh and ASI Roop Prakash examined SI Baljeet and ASI Naresh as their defence witnesses. DW-4 SI Baljeet deposed that on 18.2.2004 he had been posted at PP Matiala and DD No.34 dated 18.02.2004 PP Matiala was written by him on behalf of HC Dharam Pal.
3. As far as DD no.13 is concerned, SI Raj Pal had proceeded on leave by the said DD and SI Neeraj Kumar, I/C PP East Uttam Nagar was to look after his work vide circular order No. 36/03/CXT/AC-1 2003. It was Addl. SHO to supervise the cases of missing personnel thus even on 17.02.2004, Addl. SHO had instructed ASI Roop Parkash to give information about the missing child on telephone no. 25038284. ASI Naresh Kumar No. 2636/Sec. who was examined as DW-5, stated that on 18.02.2004 he was posted at PP Matiala and had authored DD no. 12 regarding missing child on receipt of a public call as W/Ct Kavita whose job was to write DD was not present on the seat. It is the stand taken by ASI Naresh Kumar during his deposition in enquiry proceeding that he had handed over the DD no.12 to HC Dharam Pal who was present in the PP and written that Dharam Pal had attended the call and had brought the missing child at PP Matiala. According to ASI Naresh Kumar, on the request of HC Dharam Pal, i.e. applicant in the present OA, he authored DD no. 13 in his own hand writing to facilitate his Vapsi. According to ASI Naresh Kumar (DW-5), in the same DD entry, he had written that ASI Roop Prakash had accompanied the missing child to the Orphanage at Mahavir Enclave. ASI further stated that SI Neeraj Kumar who was looking after the work of SI Raj Pal, thus was informed by him on telephone about all calls. In his defence, applicant produced HC Mahabir Prasad No. 1930/A, as DW-1, Sube Singh as DW-2 and W/Const Kavita No.3651/PCR as DW-3. DW 1 HC Mahavir Prasad deposed that on 17/18.2.04, he was working as Chittha Munshi at PP Matiala from 8.00 PM of 17.02.04 till 8.00AM on 18.02.2004 and HC Dharam Pal No.544/W and Ct.Ashok No.1644/W were on emergency duty. DW-2 Sube Singh who claimed himself as a social worker deposed that on 18.02.04 at around 7AM, he had seen Tapsi and Dhanno fighting and HC Dharam Pal and Ct. Ashok attempted to stop their fighting. W/Const. Kavita deposed that on 18.02.2004 she was performing her duty from 8.00AM as a Munshi of Rojnamcha in PP Matiala. It is admitted by DW 3 W/Const. Kavita that DD no.12 dated 18.02.04 was written by ASI Naresh in his own handwriting while she was performing her duty as Munshi Rojnamacha. HC Dharam Pal defended himself by taking the stand that although DD no. 12 dated 18.02.2004 PP Matiala had been marked to him, he had not signed the same. According to applicant, since ASI Roop Prakash had dealt with the concerned case of missing child and it was he, who was responsible for any act of omission or commission. In sum and substance, applicant has taken the plea of alibi. On the basis of evidence and material available on record, the enquiry officer arrived at following conclusion:
The pleas taken by HC Dharam Pal No. 85/NW are not acceptable. It is clear from the exhibited documents that in DD No. 12 PP Matiyala was marked to him, though on his request, ASI Roop Prakash No. 5147/PCR has been kind enough to take the child to a private orphanage because he was already going there with two other missing children. Here the sequence of events are logical. Since the concerned DD No. was marked to him, it was his duty that he should have taken follow up action and made necessary efforts to trace the parents of the child. The requisite procedure like sending of wireless message, taking the photographs of the child, sending intimation to missing person squad, recording all details in the missing person register etc. were not complied with by him. He has not produced any record to show that even minimum efforts were made or procedure was followed.
The plea taken by HC Dharam Pal was rejected by Enquiry Officer by taking the view that all the DD entries exhibited had not been signed by him and he had also not written the vapsi report of said DD entries in his own hand writing and signature. Enquiry Officer could also arrive at a conclusion that if the DD no. 12 dated 18.02.2004 was marked to him malafidely, he should have made a complaint for such malafide act of concerned ASI. The plea of SO No. 68 dated 4.5.1989 raised by applicant was turned down by Enquiry Officer by taking a view that the said SO deals with juvenile offender and not with missing of child. Enquiry Officer found the charge against the applicant, ASI Roop Parkash as proved. However, he concluded that the charge against Inspector Surender Singh was not substantiated. The DE against SI Neeraj Kumar, D/3402 had already been dropped by CP, Delhi. Relevant excerpts of Enquiry Officers report read as under:
The plea of alibi taken by HC Dharam Pal is not acceptable because all other DD entries, as exhibited by his DW, too have now been signed by him and he has also not written the Vapsi report of the concerned DD numbers in his own hand writing and signature. Hd HC Dharam Pal made an immediate written complaint that the concerned DD entries i.e. DD No. 12 and 13 dt. 18.02.04 PP Matiyala of the concerned missing child were malafidely written in his name, then the matter would have been different. The writing of DD entries in any police station or police booth is also done on behalf of others as evident by the statements of his own DWs. Moreover, DW-5 ASI Naresh and ASI Roop Parkash have clearly stated in their defence statements that the child had been handed over to HC Dharam Pal by ASI Roop Prakash.
The plea taken by HC Dharam Pal that SO No.68 dt. 4.5.1989 instructs that only upper subordinates can deal with the cases of missing child has been quoted out of context because the S.O. deals with issue of juvenile offenders. A Head Constable is empowered to deal with cases of missing persons/children.
Although the detailed defence statement with annexure are on DE file, in brief ASI Roop Prakash in his defence statement has taken the following plea:
1. That the concerned DD No.12 dt. 18.2.04 PP matiyala had been marked to HC Dharam Pal who had requested him to deposit the child in the Child Welfare Home as he was already going there along with two other missing children.
2. That he had sent/handed over the children to private children home because at that time there were no guidelines or circular in this regard. Similarly, as far as the civil case regarding guardianship of the child is concerned. DCP/Legal Cell had submitted his report in the honble court on 3.7.08 vide which he had intimated the court that there was no malafide intention or negligence on the pat of police officers as far as compliance to the provisions of juvenile act were concerned. That standing Order No.68 dt. 25.8.08 was issued and this is subsequent to the related case dt. 18.2.04. Under the circumstances, this cannot be termed as misconduct; he has cited several ruling of honble court in this regard.
3. He has produced DW-4 SI Baljeet Singh who had produced Circular Order No.36/03/C&T/AC-I dt. 2003 vide which it is the responsibility of Addl. SHO to deal with all cases of missing persons. DE-5 ASI Naresh Kumar has stated that HC Dharam Pal had attended DD No.18 dt. 18.2.04 and had brought the concerned abandoned child to the police post. On HC Dharam Pals request he had recorded DD No. 13 vide which the abandoned chilled was sent to Bal Vihar Orphanage through ASI Roop Prakash.
` The charge against ASI Roop Prakash is that he did not bother to produce the child before CWC or Ld. M.M. and he had not sent the child o recognized children home or home run by the state government or aided voluntary institution. In this regard it is stated that as far as the provisions of Juvenile Act are concerned, that will be discussed separately/subsequently because its violation is a common charge against all the charged officials. As far as the charge against ASI that he did not deposit the child in government children home is concerned, it may be stated that as per the record produced during defence evidence, it is clear that earlier too West Distt. Police had sent missing children to Bal Vihar Orphanage. Moreover as per the statement of PWs and DWs on record definitely there was no malafide intention on the part of ASI in this regard.
As far as the charge against the ASI that he did not ensured whether HC Dharam Pal had followed the procedure laid down in this regard is concerned, it is to be noted that he should have done so being a senior and as soon as he had accepted HC Dharam Pals plea to take the child to Bal Vihar Orphanage, he had simultaneously accepted the responsibility of the child and legal procedure.
Another charge against ASI is that when the parents of the child had subsequently lodged a report vide DD No. 42 dt. 8.7.04 PP Matiyala, he had failed to take proper action to restore the child to his natural parents. In this regard, the ASI had produced a W.T. Message dt. 10.7.04 to prove his innocence. But this is not acceptable because ASI is aware about the whereabouts of the child because it is he who had deposited the child at Bal Vihar Orphanage. Moreover, there is some unnecessary delay in sending the wireless message; the message should have been sent immediately and he should have immediately taken the parents to Bal Vihar Orphanage for restoration of the child.
Although the detailed defence statement, with annexure are on DE file, in brief Inspr. Surender Singh No. D-I/978 in his defence statement has pleaded/taken the defence that while the date of incident is 18.2.04, he was relieved, on transfer from the police station on 21.2.04.
That the police post functions under the direct supervision of I/c PP/SI Police Post.
As per PHQs Circular No.65353-423/C&T-AC-I/PHQ dt.1.10.07 (copy enclosed) it is the responsibility of Addl. SHO to deal with the matters.
There is no evidence on record that either any subordinate officer had brought the incident in his notice or had asked him for any advice. He has taken the plea that if an officer is away and is not present on the spot and some act is done by subordinate in his absence, he cannot be held responsible for lack of supervision. On the contrary, ASI Roop Prakash had taken advice from Addl. SHO PS Uttam Nagar, Inspr. Chandran.
That he is submitting some documents to indicate that Bal Vihar Welfare Home has been recognized/obtained licence from Social Welfare Department, Govt. of NCT of Delhi, and is being run by Sh. S.P. Rai, a retired IAS Officer of 1962 Batch.
The mechanism of child welfare committee came into existence after the Juvenile Justice Amendment Act, 2006 and, therefore, the question of producing the child before CWC did not arise. SO No.68 has been issued on 23.8.08.
The report dt. 16.6.08 of Sh. R.S. Ghumman then DCP/Legal Cell does point out to the stand taken by PHQ on the implementation of Juvenile Justice Amendment Act.
The plea taken by Inspr. Surender Singh that he remained posted as SHO/Uttam Nagar just for a day or two from the date of incident has some merit. It is a normal practice that the Mussanna (copy of pages of Rojnamcha) are sent from PP to Police Station after at least 2 to 3 days due to administrative reasons. There is no evidence on record to show that the Musanna had reached the office of the SHO till his transfer. Under the circumstances, there was no way out as to how the Inspector could have known about the incident against the background that neither anyone had asked him for advice nor had informed him about the missing child. PHQs Circular, as produced by him, clearly points out that it is the duty and responsibility of Addl. SHO to supervise the cases of missing persons. True, there is specific order No.65353-423/C&T-AC-I/PHQ dt. 3.10.07 r/w Circular No.36/03 and 23/C&T/PHQ/2005 of PHQ, that the case of missing persons will be the responsibility of Addl. SHO. Accordingly, ASI Roop Prakash, as admitted by him in his defence statement, had contacted after a day of incident and such cases are to be dealt with Addl. SHO, all subsequent issues related to the compliance to provisions of J.J. Amendment Act is not acceptable in his case. Moreover, it is to be noted that the departmental enquiry against SI Neeraj Kumar, then working as I/c PP Matiyala has been dropped. Under all such circumstances and aforesaid discussions, the charge against the Inspector cannot be substantiated.
A common charge against all concerned is that they did not comply with procedure laid down in Juvenile Justice Act ( Care and Protection of Children Act 2000). In their defence statement they have stated that there were no clear guidelines on the subject. They have produced letter No. 2783/Legal Cell-PHQ dt.6.6.08 of then DCP/Legal Cell Sh. R.S.Ghumman vide which he has stated that Regarding absence of any reference/guidelines from any competent authority for guiding local police in cases of abandoned children, a circular is being prepared and is under submission with the Director of Prosecution, Govt. of NCT of Delhi for legal vetting.. Standing Order No. 68 was issued and circulated on 25.08.2008 which is subsequent to the date of incident i.e. 18.02.04. Although lack of knowledge is no defence but under the circumstances, one can understand the limitations of and knowledge and functioning of upper and lower subordinates. It may be emphasized repeatedly that at any stage there has been no malafide intention on behalf of any police officer in this case. The charged officers have rightly pointed out in their defence statement that at the time of incident CWC was none-existent in any police station.
Under the circumstances and aforesaid discussion, the charge against HC Dharam Pal No. 854/NW that he had not sent any intimation regarding the child to missing person squad, he was not photographed and he did not follow up the matter but dealt the case in a very casual manner and that he did not make necessary efforts to trace the parents of the child stands substantiated. The charge against ASI Roop Prakash that as senior he did not ensure whether HC Dharam Pal had followed the procedure and that he failed to take proper action for restoration of the child to the natural parents also stands substantiated. However, the charge that the concerned did not adhere to the procedure as laid down by Juvenile Justice Amendment Act and the child was not produced before CWC/Ld. M.M. and the child was sent to Bal Vihar Orphanage, under the circumstances, cannot be proved.
The charge against Inspr. Surender Singh No.D-1/978 has not been substantiated. The DE against SI Neeraj Kumar No. D/3402 has already been dropped by CP, Delhi as intimated by DCP/Vigilance. Accepting the findings of enquiry officer, the disciplinary authority passed order dated 21.10.2010 imposing the penalty of withholding of one future increment permanently on applicant. In appeal preferred by applicant against aforementioned order penalty was reduced by the appellate authority to withholding of one future increment temporarily for a period of year to secure the ends of justice.
Questioning the order of regular departmental enquiry, penalty order, order of appellate authority and findings of the enquiry officer report, applicant filed present Original Application. During the course of arguments, Mr. Sachin Chauhan learned counsel appearing for applicant contended:
In terms of Rule 18 of CCS (CCA) Rules, where two Government servants are concerned in any case, the President or any other authority competent to impose the penalty of dismissal from service on all such Government servants may make an order directing that disciplinary action against all of them may be taken in a common proceeding, but if two Government servants complaint against each other, the disciplinary authority should hold separate enquiry against them although the proceedings of both the enquiries may take place simultaneously.
The applicant did not get any opportunity to cross examine DW-5 who deposed against him.
In his report submitted by DCP (Legal cell) in the Court of Shri Surinder S. Rathi, Guardian Judge, it is categorically stated that there is no procedural lapse on the part of local police in dealing with the child for the reason that there was no reference or guideline from any competent authority to local police which could guide them about the NGO/Government institution to which abandoned child should be handed over.
4. Per contra, Mrs. Renu George, learned counsel, appearing for the respondent vehemently contended that it is quite unfortunate that the concerned DCP submitted such report as relied upon by applicant. Making a reference to SO No. 68 regarding duties of the Police under the Juvenile Justice (Care and Protection of Children) Act, 2000, she submitted that in terms of clause 17 of said order, whenever a Juvenile in need of care and protection is found in the jurisdiction of any police station, he should be produced before PS Juvenile Welfare Officer/SHO. An entry in the daily diary should be made giving particulars of Juvenile; police control room be informed at once, report on the prescribed proforma must be sent to the missing person squad through district missing persons unit. If the parents are not know or are not in a position to exercise any control over the juvenile, the juvenile should be produced before the JJB and as per the order of the JJB he should be sent to the Observation Home. While dealing with a juvenile girl, special care should be taken etc. For easy reference, said clause 17 is extracted herein below:-
17. Juveniles in Need of Care and Protection Whenever a juvenile in need of care and protection is found in the jurisdiction of any police station, the following action should be taken:-
a. The juvenile should be produced before PS Juvenile Welfare Officer/SHO b. An entry in the Daily Diary should be made giving particulars of the juvenile, and the reasons for suspecting that he is such a juvenile.
c. The Police Control Room must be informed at once.
d. A report on the prescribed proforma must be sent to the Missing Persons Squad through District Missing Persons Unit.
e. If the parent is known, an inquiry should be initiated to know the social background of such a juvenile.
f. If the parent is not known or is not in a position to exercise any control over the juvenile should be produced the JJB and as per the order of JJB to be sent to the Observation Home. A list of observation Home/Special home is located at Annexure-E. Under no circumstances the juvenile shall be kept in the police station. The juvenile shall continue to be in his charge for the period stated by the Child Welfare Committee constituted vide notification No.F.61(2)/DCA/DSW/200, 245-79 dated 07.02.2008. The same is placed at Annexure-F. A list of child Welfare Committee with their addresses is placed at Annexure-C. g. While dealing with a juvenile girl, special care needs to be taken. Such girls accompanied by women police should be produced before the Child Welfare Committee after medical check-up with the request for sending her to Childrens Home.
h. In case a juvenile is mentally challenged, he or she should be medically examined from a Govt. Hospital and produced before JJB. He or she should be sent to Institutions for mentally restarted as per the order of the JJB, after confirming if a missing report has already been lodged at the District Missing Persons Units (DMPU)/Missing Persons Squad (MPS). A list of Institutions for mentally restarted is placed at Annexure-G. i.A child in need of care and protection shall be produced before the committee within 24 hours, excluding journey time. Although it is not so argued but in the OA, applicant has also taken a ground that no malafide or ulterior motive on his part has been alleged for committing the misconduct alleged against him.
5. As far as the plea of separate enquiry raised by applicant is concerned, as can be seen from the general instructions issued vide GI MHA letter No. 6/98/83-AVD dated 13.06.1963, separate enquiry need to be held where two government employees working in the same office made complaints against each other. In the present case, it is not so that co-delinquents had initially made complaints against each other. Common allegation of not handling the missing child brought to Police Station properly was leveled against applicant and ASI Roop Prakash. Thus no infirmity can be found in the action of respondent in holding common enquiry on the charges leveled against applicant and others. For easy reference, Rule 18 of CCS (CCA) Rules and Government of Indias decision thereunder are extracted hereinbelow:
18. Common proceedings (1) Where two or more Government servants are concerned in any case, the President or any other authority competent to impose the penalty of dismissal from service on all such Government servants may make an order directing that disciplinary action against all o them may be taken in a common proceeding.
Note.- If the authorities competent to impose the penalty of dismissal on such Government servants are different, an order for taking disciplinary action in common proceeding may be made by the highest of such authorities with the consent of the others.
(2) Subject to the provisions o sub-rule (4) of Rule 12, any such order shall specify-
the authority which may function as the Disciplinary Authority for the purpose of such common proceeding;
the penalties specified in Rule 11 which such Disciplinary Authority shall be competent to impose;
whether the procedure laid down in Rule 14 and Rule 15 or Rule 16 shall be followed in the proceeding.
Government of Indias decision Procedure of enquiry when two Government servants accuse each other.- In a recent case, two Government employees working in the same office made complaints against each other. The Disciplinary Authority initiated departmental proceedings again both the employees under Rule 17 of the CCS (CCA) Rules. The question whether it is legally permissible to enquire into the conduct of the accused and the accuser in one joint proceeding was examined in consultation with the Ministry of Law. Cross complaints arising out of the same or connected incident or transaction are not uncommon, and occur frequently in criminal case. The Code of Criminal Procedure is silent with regard to the procedure to be adopted in such cases. The general principle as laid down by the Courts is that, the accused n cross cases should be tried separately and that both the trials should be held simultaneously or in quick succession so as to avoid conflicting findings and different appraisal of the same evidence. On the analogy of the criminal law practice and procedure, a joint proceeding against the accused and accuser is an irregularity which should be avoided. This should be noted for future guidance.
6. The plea of not having an opportunity of cross examination of DW-5 is based on the principle of natural justice. It is settled principle of law that the principle of natural justice is subject to crhches of prejudice and useless remand theory. In order to establish the plea of violation of principles of natural justice in not giving him an opportunity to cross examine DW-5 raised by applicant, he needed to establish the prejudice caused to him in the absence of such opportunity. He could succeed in establishing the prejudice only if he could show that during the enquiry proceeding he made a request to Enquiry Officer to allow him opportunity to cross examine the relevant DW. Learned counsel for applicant could not point out any such request made by applicant to Enquiry Officer to give him an opportunity to cross examine DW-5 who could depose that the DD no. 12 dated 18.02.2004 was marked to applicant to attend the calls. The disciplinary authority, while passing the order of penalty, examined the plea of alibi raised by applicant and viewed that it is beyond explanation that someone would stay on a call for 20 hours at a stretch and that too without a result. The disciplinary authority has also viewed that once DD no. 12 was marked to HC Dharam Pal, he alone could be blamed for irregularity in handling the case mentioned in such DD entry. The view taken by disciplinary authority regarding role of applicant in the alleged incident of misconduct committed by him, as recorded in its order reads as under:
I have carefully gone through the charge, evidence on record, statement of PWs/DWs, defence statement and representation of the delinquent Inspr. Surender Singh, ASI Roop Prakash and HC Dharam Pal, finding of the EO and the other material available on record. The Enquiry Officer conducted the enquiry as per Delhi Police (Punishment and Appeal) Rules, 1980 and submitted his findings. Immediately after over the abandoned child from HC Dharam Pal for deposing him to Bal Vihar Orphanage, ASI Roop Prakash should have also ensured whether the laid down procedure has been followed by the HC in respect of abandoned child like photographs, announcement in the locality and registering the child in Missing Persons Squad, issuing of Wireless Messages to all Police Stations in Delhi, etc. But he did not. He cannot absolve himself from the charge that no complaint was made against him by the father of the child who had approached the court because Baba of the orphanage was not giving him any clue about the child. The contention of the delinquent ASI carries no weight. The charge against the delinquent ASI is that when natural parents of the child lodged report vide DD No.42 dated 08.07.04 at PP Matiala, he failed to relate the same and take proper action to restore the child to his natural parents. During the DE proceedings, the delinquent ASI produced WTM dated 10.07.04 to prove his innocence. But it cannot be accepted because the delinquent ASI who himself deposited the abandoned child at Bal Vihar Orphanage, knew the whereabouts of the child. He should have immediately taken the parents of the abandoned/missing child to the Bal Vihar Orphanage for restoration of the child, but he failed to do so. His plea that DE was initiated vide order dated 25.03.09 without withdrawing the earlier SCN issued to him on the same allegation also carries no weight as it would not have changed the fat of the case and the allegations would remain the same.
So far as above charge against delinquent HC Dharam Pal, the same have been approved from the depositions of PWs, DWs and other evidence on record. DD No.12 PP Matiala was marked to him and subsequently he reported back with the abandoned child and his arrival was marked vide DD No. 13 wherein he handed over the abandoned child to ASI Roop Parkash for depositing to Bal Vihar Orphanage. ASI Roop Prakash, No. 5147/PCR who was already going with two other missing children took the child and lodged all the three to Bal Vihar Orphanage. DW-5, ASI Naresh Kumar, No.2636/Sec. stated that he wrote DD No.12 regarding a missing child in the absence of W/Ct.Kavita (DD writer) who had gone to toilet, on receipt of a public call and handed over the same to the delinquent HC Dharam Pal who present in the PP Matiala. His arrival was lodged vide DD No.13 and on his request the abandoned child was handed over to ASI Roop Prakash for further necessary action. During O.R. the delinquent ASI Roop Parkah, co-defaulter of the delinquent HC was present in the Police Post at the time of writing DD No.13. As the delinquent ASI was already going to Bal Vihar Orphanage to deposit 2 other abandoned children (already with him), the delinquent HC requested him to deposit the one with him to Bal Vihar Orphanage. The sequence of events is logical. Since the concerned DD was marked to him, it was his duty to take follow up action and make sincere efforts to trace out the parents of the abandoned child by adopting legal procedure, TPM, taking photographs of the child, informing to missing personal squad and recording details in the missing register etc., but he did not. On the other hand it was the responsibility of the ASI also to ensure that all these formalities have been completed before he took the abandoned child from the HC for lodging to the Orphanage. The HC has pleaded that D No.32, 37 & 38 were handed over to him in the evening of 17.02.2004 from 8.40 PM onwards. ASI Baljit made his departure at 2.10 PM on 18.02.04 with reference to DD Nos. 37 and came back vide DD No24/18.02.2004 at about 4.40 PM. He also made arrival entries in respect of other staff including the delinquent HC to the PP in the said call i.e. 37/17.02.2004.
Meaning thereby that HC Dharam Pal who was marked DD No.37 on 17.02.2004 remained on that call for almost 20 hours at a stretch whereas ASI Baljit who conducted the call vide DD No.24/8/0.2004, took just two hours to do the job. It is beyond explanation that someone would stay on a call for 20 hours at a stretch that too without a result. The claim of DW 2 Shri Subey Singh, a social worker that he saw the delinquent HC on the spot from 7.00 a.m to 2.30 p.m. dated 18.02.04 is not acceptable. There was no reason for the delinquent HC to be stay at the spot in this particular PCR calls from 8.40 .p.m. dated 17.02.04 to 4.40 dated 18.02.04. Besides, his defence that he came back vide DD No.24/18.02.2004 is contradictory to his own plea wherein e has disowned the DD Nos.12 & 13 dated 18.02.2004 on the pretext that it does not bear his signatures whereas the DD No.24/18.02.2004 also does not bear his signatures. In this connection, the statement o DW-4 SI Baljit Singh goes to establish that DD entries are written in any police station or police post on behalf o fellow officers by others.
The contention raised by the delinquent Inspector Surender Sigh in his representation and documents produced are accepted as far as it relates to distribution/supervision of work in view of PHQs Circular No. 65353-423/C&T-C-I/PHQ dated 01.10.07 wherein the Addl. SHO concerned is responsible for supervising the case of missing persons. Besides, it has also been established during the conduct of the DE proceedings that the Addl. SHO was monitoring the cases of missing persons. In view of the said distribution of work issue vide PHQs circular referred above, Inspr Surender Singh, No.D-1/978 is exonerated from the charge. Besides, the DE order dated 25.02.3009 as far as it relates to SI Neeraj Kumar, No.D-3402 was withdrawn on administrative grounds vide order No.590-615/P. Cell/Vig (P-iii0 dated 15.01.2010.
I have also heard them in O.R, wherein they have reiterated pleas taken by ASI Roop Prakash, No.5147/PCR an HC Dharam Pal No. 85/MW (Now 8551/DAP) in their written representation. The pleas put forth by them in their written defence statements and representations are not admitted in view of the above discussion. Therefore, I Rajesh Kumar, Special Commissioner of Police (Armed Police), Delhi do hereby impose a punishment of withholding of one future increment permanently to ASI Roop Prakash, No. 547/PCR and HC Dharam Pal No. 85/NW (Now 8551/DAP)..
Let a copy of this order be given to the delinquents ASI and HC free of cost. They can file an appeal to the C.P., Delhi against this order on a non-judicial stamp paper worth 0.75 paisa within 30 days from the date of its receipt by enclosing a copy of this order, if they so desires. Inspr. Surender Singh No. D-1/978 be also informed accordingly. Accepting the plea of applicant that there was no malafide intention or connivance on his part in casually handling the case of abandoned minor child, the appellate authority reduced the penalty of withholding of one future increment permanently imposed on applicant for a period of one year to that of WIT (withholding of one future increment temporarily) for a period of one year. In his detailed appeal made by applicant, he had pleaded alibi and raised contention that ASI Naresh Kumar had shown DD no. 12 dated 19.02.2004 falsely marked to him and he being already on emergency duty and pre-occupied, was not present at PP Matiala on 18.02.2004 at 10.30AM. However, in his written briefs, applicant himself has taken a stand that DD no.12 dated 18.02.2004 was marked to him. He, however, pleaded that child was handed over to ASI Roop Parkash who had taken the same to Bal Vihar, Mahavir Enclave. Relevant excerpts of said brief reads as under:
xxx xxx xxx It is further submitted that vide DD No. 12 dated 18.02.04 PP Matiala PS Uttam Nagar, though this DD entry has been marked to me as per DD No. 13 dated 18.02.2004, PP Matiala PS Uttam Nagar, the child was handed over to ASI Roop Prakash who took the child to Bal Vihar, Mahavir Enclave. Further in DD no. 21 dated 18.02.2004 PP Matiala, PS Uttam Nagar, ASI Roop Prakash has made his arrival and in the said DD entry, ASI Roop Prakash has recorded that the child has been deposited in Sadhu Sunder Singh Welfare Society. Registered Bengali Colony, Mahavir Enclave, New Delhi and it has been handed over to Baba John Dayal President of Bal Vihar and the facts have been brought to the notice of I/C PP and the SHO.
Your goodself as such from DD No.13 and DD No.21 dated 18.12.2004 PP Matiala PS Uttam Nagar, the alleged quantum of allegations contained in the Charge against me nowhere stand proved and are without any basis and incorrect.
xxx xxx xxx So far as the depositions made by DW-5 ASI Naresh Kumar No. 2736/Sec.in his chief are concerned, my submission are as under:-
a) It has been proved from the chief of this DW-5 that DD no. 12 13 were written by him while myself had gone on a call and brought n abandoned child to the Police Post and on my request he has written DD No.3and handed over the abandoned child to ASI Roop Prakash and in his presence ASI Roop Prakash has taken the child to Bal Vihar Mahavir Enclave in his presence.
If your good self will examine the deposition of this DW-5 together with the depositions of DW-2 & DW-6, your god self will find that I was never present in the Police Post Matiala but at that time I was present in Sec.16m JJ Colony and ASI Baljeet also reached there and myself and ASI left the place at about 4 p.m. Your kind Honour as such will find this DW-5 has made an incorrect deposition that I as present in the Police Post on 18.02.2008 and brought the abandoned child in the Police Post which was later handed over to ASI Roop Prakash, who took him to Bal Vihar because ASI Naresh Kumar was made DD No. 03 at 8.03 AM dt.18.02.2004 for enquiry and report. He made his arrival vided No. 11 at 10.35 AM on 18.02.2004 for enquiry and report. He made his arrival vide DD No.11 at 10.35 AM on 18.02.2004 after the PCR call in his own handwriting. How he can made another DD entry No.10 t 10.00 AM. In his own handwriting. How he can made another DD entry No.10 at10.00 M. In his own handwriting, while he was already departed from PP Matiala for the enquiry of a PCR all. In those DD entry he written as Bakalam A/c (Written by Asstt. Cllerk) instead of written by self DD No. 12 & 14 wer also lodged by ASI Naresh, as disclosed by him during his defence statement (DW-5) but in the end of DD entry he written Balakam A/c (written by Asstt. Clerk) whereas DD No.13 was also lodged by him at the end he written Baklam H/C (written by Head Constable) whereas DD entry No.13 was not written by me and in this way it is crystal clear that his statement is not true as well as not believable also. Moreover it is myself proved from the deposition made by this PW-5 that DD No.12 & DD No.13 dated 18.02.2004 were written by him and further DW-6 has proved also that these DD entries were written by DW-5 and DW-6 nowhere stated that at that time I was present in the Police Post and brought the abounded child to the Police Post.
Your good self as such the chief of this DW-5 which is misleading, contradictory, baseless, without logic and incorrect the alleged quantum of allegation contained in the Charge against me nowhere stand proved. Charge against applicant was not only of handing over the child to Orphanage but he was also charged with misconduct of not bothering to follow up the matter and dealing with the case in a very casual manner as he did not make the necessary efforts to trace the parents of the child.
7. As far as the contention of applicant of non availability of guidelines for dealing with Juvenile in need of care and protection found in the jurisdiction of any police station is concerned, it is seen that SO No. 68 issued by Commissioner of Police, Delhi on 23.08.2008 deals with such guidelines laid down for the purpose. The said SO has already taken note of Section 27 of the Juvenile Justice Act 2000 laying down detailed guidelines. The said provision has already been taken note of hereinabove while recording the contentions of Mrs. George, learned counsel appearing for respondents. However, it is seen that SO 68 was issued on 23.08.2008 i.e. after 3.07.2008 when Mr. R.S. Ghumman, DCP, Legal Cell had already submitted his report before the Court of Mr.Surender S. Rathi, Guardian Judge, Tis Hazari Court, Delhi giving an undertaking that a circular was being prepared for guiding of local police in the cases of abandoned children. Thus Shri R.S. Ghumman, DCP, Legal Cell cannot be found incorrect in taking the stand that no guidelines from any competent authority to local police had been issued for its guidance about NGO/Govt. body to whom abandoned child was to be handed over. However, once an abandoned child was brought to a PS, in terms of Section 27 of Juvenile Justice Act, 2007 itself, the police control room must have been informed at once and other steps as prescribed in said Act should have been taken by concerned police official who was given charge of the case. A police official is not liable to be punished only when he has committed a misconduct with ill motive. Lack of devotion to duty, carelessness and lackadaisical attitude towards performance of duty are also kinds of dereliction of duty, which may call for imposition of lighter punishment.
8. In the aforesaid circumstances, we are not in clined to interfere with the penalty of WIT for one year imposed upon the applicant. OA is accordingly dismissed.
(A .K.Bhardwaj) ( Shailendra Pandey) Member (J) Member (A) sk