Central Administrative Tribunal - Delhi
Presently Posted At Outer District vs Gnct Of Delhi on 10 September, 2013
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No.4243/2012
Order reserved on 5th August, 2013
Order pronounced on 10th September 2013
Honble Shri Sudhir Kumar, Member (A)
Honble Shri A.K. Bhardwaj, Member (J)
Inspr. Sudhir Kumar
Inspr. No.D-1/75, PIS 16810007
s/o late Shri B N Saxena
r/o C-3/34, Ashok Vihar Phase II
Delhi-52
Presently posted at Outer District
Group B, aged 55 years
Applicant
(By Advocate: Shri Sourabh Ahuja)
Versus
1. GNCT of Delhi
Through the Commissioner of Police
Delhi Police Headquarters
IP Estate, MSO Building
New Delhi
2. Joint Commissioner of Police
Northern Range
Through Commissioner of Police
PHQ, IP Estate
MSO Building, New Delhi
3. Deputy Commissioner of Police
Outer District
Through Commissioner of Police
PHQ, IP Estate
MSO Building, New Delhi
Respondents
(By Advocate: Ms. Harvinder Oberoi)
O R D E R
Shri A K Bhardwaj:
Vide notice No.6450/HAP/Outer District dated 24.6.2010 issued by the Deputy Commissioner of Police, Outer District, Delhi, the applicant was asked to show cause for not taking serious action in the case of burglary took place in the house of one Smt. Saroj Khanna r/o H.No.3, New Modern Apartment, Sector-9, Rohini, Delhi 85 on 6.2.2010 and again on 4.5.2010 even after lodging the complaint with the Police by her. For easy reference, the show cause notice is extracted hereinbelow:-
A Show Cause Notice provisionally proposing the punishment of Censure was issued to Inspr. Sudhir Kumar, No. D-I/75 (PIS No.16810007) vide this office No.6450/HAP/Outer District dated 24.6.2010 for his gross negligence, carelessness, irresponsible attitude and dereliction in the discharge of his official duties in as much as on 12.5.2010, one Mrs. Saroj Khanna R/o H.No.3, New Modern Apartment, Sector-9, Rohini Delhi-110085 submitted a complaint stating therein that on February 6, 2010 a burglary took place in their house and she lodged a complaint in PS Prashant Vihar but no serious action was taken. Again on May 04, 2010 a burglary took place but even after lodging a complaint with police no action had been taken. It is a very serious lapse on the part of local police. Even after the lapse of weeks in the first incident and 7 days in the second incident neither any case has been registered till date nor any preventive action is taken. If timely action was taken the repetition of burglary could have been prevented. A mobile phone Nokia 5500, IMEI No.351884011351074, had also been stolen in the above burglary. Had the IMEI No. of the above said phone was put under observation well in time the culprits could have been apprehended? Delayed action by the police in such cases give undue benefit to the culprits and recovery of stolen articles becomes more difficult.
Inspr. Sudhir Kumar No.D-I/75, SHO/Prashant Vihar received the copy of Show Cause Notice and submitted his reply accordingly. In his reply he has stated that on 6.2.2010 the complainant reported that a theft incident took place in her house and the same was handed over to ASI Nand Kishore, who reached at the spot and kept the complaint pending due to small amount. He further stated that a case FIR No.165/10 dated 12.5.2010 u/s 380/454 IPC PS Prashant Vihar was registered on the same incident dated 4.5.2010. Moreover, mobile phone Nokia 5500, IMEI No.351884011351074 has been put on electronic surveillance. He further contended that the sincere efforts are being made by the I.O. to recover the mobile phone and stolen property and also requested that no such lapse will be repeated in future.
I have carefully gone through the written submissions putforth by the Inspr. which is not found to be satisfactory. He was also heard in O.R. where he did not adduce any fresh plea except whatever he has submitted in his written reply and begged for mercy. The delay into the matter is unacceptable and SHO should not abdicate his responsibility in this regard. The plea taken by the Inspr. is not tenable because the Inspr. severely failed to guide the IO properly. This shows the negligency and lackadaisical approach towards the matter on the part of SHO which cannot be tolerated in any manner being the supervisory officer. Therefore, the proposed show cause notice issued to him is confirmed and the conduct of Inspr. Sudhir Kumar No.D-I/75, SHO/Prashant Vihar is censured.
Lat a copy of this order be given to him free of cost. He can file an appeal against this order to the Joint C.P./Northern Range, Delhi within 30 days from the date of its receipt, on non-judicial stamp paper valued 00.75 Paise by enclosing a copy of this order, if he so desires.
2. In his reply to the show cause notice, the applicant explained that on 6.2.2010 the complainant reported that a theft incident took place in her house and the same was handed over to ASI Nand Kishore, who reached at the spot and kept the complaint pending due to small amount being involved in the theft. Regarding incident on 4.5.2010, he explained that a case FIR No.166/10 dated 12.5.2010 under Sections 380/454 IPC was registered at PS Prashant Vihar and mobile phone Nokia-5500, IMEI No.351884011351074 had been put on electronic surveillance and sincere efforts were being made by the inquiry officer to recover the mobile and stolen property. It was also assured by the applicant that no such lapse would be repeated and he would remain more careful in future. Such expression of the applicant can be construed as admission of the lapse committed by him.
3. Having considered the aforementioned reply given by the applicant and giving him personal hearing on 12.1.2012, the disciplinary authority found no substance in his plea and found it evident from the perusal of the record available in the file that no case was registered on the complaint of Smt. Khanna, even after the lapse of three months from the date of incident of burglary in which a mobile phone too was stolen. It is the view of the disciplinary authority that the applicant being SHO, PS Prashant Vihar was required to ensure prompt registration of the case on the complaint and had he done so, the electronic surveillance in respect of stolen mobile phone could have been initiated and perhaps the second incident of burglary could have been avoided.
4. In the detailed appeal preferred by the applicant, he pleaded:
The disciplinary authority was swayed by the passion of bias and prejudice attitude towards him and the show cause notice was un-founded, His reply to show cause notice was not taken into consideration objectively by the disciplinary authority, The inquiry lodged into the incident of theft took place on 6.2.2010 was handed over to the ASI Nand Kishore, who reached the spot and kept such complaint pending due to paltry amount and there was no bar to keep the complaint pending under the Punjab Police Rules, 1934, which is applicable to Delhi Police also, Regarding second incident dated 4.5.2010, an FIR No.166/2010 dated 12.5.2010 under Sections 381/454 IPC was registered at PS Prashant Vihar and the mobile phone Nokia-5500, EMEI No.35188401135107 was put on electronic surveillance and efforts were made to recover the stolen property by the inquiry officer, thus there was no lapse on his part, Once he had assigned the case to the investigating officer, the lapse, if any, was on his part and not on the part of the applicant; and There was no truth in the charge of negligent alleged against him.
5. Having considered the pleas raised in the appeal, the appellate authority rejected the appeal in terms of the order No.662-667 P. Sec. NR (SI/A) dated 30.1.2012, thus the applicant has filed the present OA praying therein:
(a) To quash and set aside the impugned orders mentioned in Para 1 of the OA and accord to the Applicant all the consequential benefits viz. promotion, seniority etc. And
(b) To award cost in favour of the Applicant and against the respondents. And
(c) To pass any further order, which this Honble Tribunal may deem fit, just equitable in the facts and circumstances of the case.
6. In the said O.A., the applicant has broadly reiterated the stand taken by him in the appeal. Besides, Shri Sourabh Ahuja, learned counsel for applicant contented that:
the allegation against applicant was vague, thus, before inflicting the penalty upon the applicant the respondents ought to have conducted a detailed inquiry, the respondents did not supply him the copy of the complaint, thus he could not get fair opportunity to defend himself, before inflicting the penalty upon the applicant, the disciplinary authority did not consider the pleas taken by him in the reply to show cause notice, the applicant is penalized for the charge, which was not alleged against him, when no action was taken against the investigating officer, the applicant is punished for supervisory lapse, which is not permissible; and the appeal of the applicant was rejected without application of mind and he did not commit any misconduct.
7. In the counter reply filed by the respondents, it is pleaded:
It was open to the applicant to obtain the copy of the complaint at the time of submission of reply to show cause notice or at the time of filing the appeal but he did not do so, The disciplinary authority after considering the written as well as oral submissions of the applicant in orderly room found him at fault and awarded the punishment of censure, keeping in view the gravity of the misconduct, The respondents never extended the scope of show cause notice, The inaction on the part of the applicant on the complaint of Smt. Khanna certainly constituted misconduct, Being the SHO of the Police Station, the applicant was fully responsible for timely registration of theft case and to brief and guide the staff in this regard. It was his responsibility to control the supporting staff and since he failed to do so, the disciplinary authority rightly inflicted the penalty upon him; and The appellate authority has correctly decided the appeal of the applicant after giving full opportunity to the applicant to defend himself.
8. We have heard the learned counsel for the parties and perused the record.
9. As far as the plea of the applicant regarding non-adherence of Article 311 of the Constitution and non-supply of the complaint to him is concerned, we find no force in the same, as in terms of Rule 6 (ii) of Delhi Police (Punishment & Appeal) Rules, 1980, the punishment mentioned at Sl.No.(viii) of Rule 5 is called a minor penalty and can be awarded by the authority mentioned in sub-sections (i) & (ii) of Delhi Police Act, 1978 after serving a show cause notice and giving a reasonable opportunity of hearing to the defaulter and considering his written reply as well as oral deposition, if any, for which opportunity shall be afforded on request either before submitting his reply to the show cause notice or filing a reply. The applicant never asked for the copy of the complaint. Besides, in his reply to show cause notice and appeal, he could take all possible pleas. At no stage, i.e., either at the time of filing reply or at the time of appeal, he ever took plea of prejudice in the absence of supply of copy of the complaint to him. The said plea raised by the applicant is only an afterthought. The applicant no where canvassed that in what manner he lacked to put forth his defence in the absence of supply of copy of complaint to him. Normally, when the applicant never asked for copy of complaint, it is presumed that non-supply of the same has not resulted any prejudice to him.
10. The absence of action against the inquiry officer would also not vitiate the impugned order passed by the respondents for the reason there is no principle of negative equality. Further, it is not the case of the applicant that he initiated or recommended action against the subordinate staff for an inaction on their part. Being the SHO of the Police Station, it was the primary duty of the applicant to take prompt action in the complaint of theft lodged by Smt. Khanna. In fact, non-recommendation / non-initiation of action against the subordinate staff would also further indict the applicant only in the flaw alleged against him. We are also unable to accept the plea of the applicant that the delay on the part of the police officials in initiating steps on complaint does not constitute any misconduct.
11. Nevertheless, we are convinced that once in his reply to the show cause notice and also in his appeal, the applicant had pleaded that he had handed over the complaint to ASI Nand Kishore, who reached at the spot and kept the complaint pending and in terms of the Punjab Police Rules, 1934 when the complaint was pending in the first incident and in the second incident, the FIR was registered and the mobile was put on electronic surveillance, it was incumbent upon the disciplinary and the appellate authorities to deal with the same before arriving at a final conclusion regarding imposition of penalty and rejection of appeal. Both the disciplinary as well as appellate authorities viewed that the delay in initiation of action into the matter was not tolerable. Once in minor penalty proceedings no detailed inquiry is held, it is incumbent upon the disciplinary as well as the appellate authorities to pass a detailed and speaking order commenting upon the contentions raised in reply to show cause notice as well as in appeal. In the absence of any finding recorded by both the authorities on the plea of the applicant regarding marking the complaint to ASI Nand Kishore, registration of FIR No.165/10 dated 12.5.2010 u/s 380/454 IPC at PS Prashant Vihar and putting the stolen mobile on electronic surveillance, we are unable to sustain the orders passed by the disciplinary as well as appellate authorities.
12. We are conscious of the judgment of the Honble Supreme Court in Chairman, LIC of India & others v. A. Masilamani, JT 2012 (11) SC 533 wherein it has been held that where there is fault in the action of the disciplinary as well as appellate authorities, it would be appropriate to remit the matter back to the concerned authority to resume the action from the stage the defect is found. Relevant excerpt of the said judgment reads as under:-
8. In view of the issues raised by the learned counsel for the parties, the following questions arise for our consideration:
(i) When a court/tribunal sets aside the order of punishment imposed in a disciplinary proceeding on technical grounds, i.e., non-observance of statutory provisions, or for violation of the principles of natural justice, then whether the superior court, must provide opportunity to the disciplinary authority, to take up and complete the proceedings, from the point that they stood vitiated and;
(ii) If the answer to question no.1 is, that such fresh opportunity should be given, then whether the same may be denied on the ground of delay in initiation, or in conclusion of the said disciplinary proceedings.
9. It is a settled legal proposition, that once the Court sets aside an order of punishment, on the ground that the enquiry was not properly conducted, the Court cannot reinstate the employee. It must remit the concerned case to the disciplinary authority, for it to conduct the enquiry from the point that it stood vitiated, and conclude the same. (Vide: Managing Director, ECIL, Hyderabad etc.etc. v. B. Karunakar etc.etc. AIR 1994 SC 1074; Hiran Mayee Bhattacharyya v. Secretary, S.M. School for Girls & Ors., (2002) 10 SCC 293; U.P. State Spinning C. Ltd. v. R.S. Pandey & Anr., (2005) 8 SCC 264; and Union of India v. Y.S. Sandhu, Ex-Inspector AIR 2009 SC 161).
13. In the circumstances, the orders passed by the disciplinary as well as appellate authorities are quashed and the matter is remitted back to the disciplinary authority to pass a fresh order.
14. The O.A. is disposed of. No costs.
( A.K. Bhardwaj ) ( Sudhir Kumar ) Member (J) Member (A) /sunil/