Central Administrative Tribunal - Delhi
Virender Kumar Kalia S/O Shri Onkar Nath vs Commissioner Of Police, Joint ... on 9 October, 2007
ORDER Shanker Raju, Member (J)
1. Virender Kumar Kalia, Inspector (Executive) in Delhi Police by virtue of this OA, has assailed an order of minor penalty of censure passed on 18.02.2005 as well as the appellate order dated 24.05.2006 whereby the aforesaid penalty has been upheld.
2. While working as Traffic Inspector at Indian Gate area on a supervisory duty, the following allegations have been levelled against applicant on which show cause notice dated 19.01.2005 was issued to him:
On receipt of news clipping dated 19.10.2004 published in 'Pioneer' captioned 'Is this what you call public-private partnership', an enquiry conducted into the matter by Vigilance Branch revealed that in the Connaught Place area a large number of CC Permit Charted Buses were found operating. Most of these buses were found operating on diesel mode, which cannot ply as charted in Delhi. The permits issued to these were found not valid for journey terminating within the satellite cities. One diesel bus No. DL-1PB-6998 was found plying from Rohini to India Gate.
These buses are plying in violation of permit conditions and with the active connivance of Traffic officials posted at India Gate area. Thus it is clear that Inspr. Virender Kumar Kalia, No. D-141, the then TI/TMC (now TI/PRG) supervisory officer of the area failed to curb the plying of diesel buses in the area and also failed to take legal action against these buses.
The above act on the part of Inspr. Virender Kumar Kalia, No. D-1/41, the then TI/TMC (now TI/PRG) amounts to gross negligence, carelessness, malafide and dereliction in the performance of his official duties.
3. In the aforesaid notice applicant has established that the area in which the bus was detected violating permit condition, does not fall within his jurisdiction where he was performing his duties. Moreover giving reference to the vigilance enquiry, it is stated that though the same was relied but not provided to him and that there is no mention of place and type of permit violation. As such, for want of specific allegations, applicant could not effectively defend the allegations.
4. The disciplinary authority on the basis that the diesel bus was plying from Rohini to India Gate in violation of the permit conditions took it as failure on part of applicant to prosecute for plying in his area, which on appeal was turned down on the ground that failure of applicant to detect unauthorized plying of diesel buses at India Gate cannot absolve him.
5. Learned Counsel for the applicant states that applicant cannot be punished as he has not committed any misconduct and as the alleged detection of plying bus violating permit condition was found in some other area. He relied upon a decision of a decision of the Apex Court in S.N. Balakrishna v. George Fernandez to contend that a news item without further proof of actual happening is of no value. It is also stated that on mere suspicion, one cannot be punished in the department and has relied upon a decision of the Apex Court in Union of India v. H.C. Goel .
6. In a matter of lack of supervision, a reliance has been placed on a decision of this Tribunal in the matter of R.M. Sharma v. Govt. of NCT of Delhi OA No. 2417/2003, decided in January, 2005 to contend that the condition precedent for establishment of lack of supervision is the proximity of the person at the place and time of alleged lapse.
7. Lastly it is contended that in respect of one similarly circumstanced Zonal Officer, namely, Jitender Kumar, same allegations when replied led to penalty of censure on allowing the bus to ply in India Gate area, yet the same appellate authority set aside the penalty of censure on the ground that the area where the bus was found plying did not fall in the jurisdiction of the applicant. Accordingly, it is stated that being similarly circumstanced on the same allegation once the Zonal Officer was exonerated, non-accord of similar treatment to the applicant would amount to invidious discrimination.
8. On the other hand, learned Counsel of respondents vehemently opposed the contention and stated that the facts in Jitender Kumar's case are different as his area of duty was different from applicant and moreover applicant had more areas under his supervision. As such, on vigilance enquiry when the allegations on the basis of a press cutting was found to be substantiated, he has been rightly punished on the allegations commensurate with his misconduct.
9. On careful consideration of rival contentions of the parties, I am of the considered view that in the matter of punishment, invidious discrimination has no role to play and would be violative of Articles 14 & 16 of the Constitution of India. The Apex Court in Tata Engineering & Locomotives v. Jitender Pal Singh 2000 (2) SC L&S 909 held that when regarding the same incident others have been exonerated, punishment on the same count to the similarly circumstanced is not legally permissible.
10. In the above view of the mater, I find that there is no distinction between the allegations levelled against the applicant and Jitender Kumar and once the same appellate authority has come to the findings that the bus which has allegedly violated the permit condition was not plying at India Gate, the same holds good for applicant as well. When applicant, being the supervisory officer and Zonal Officer, has been alleged in absence of any specific particulars of allegation that the bus was plying at India Gate and moreover when the bus was found plying in the Connaught Place area, which did not come within the jurisdiction of performance of duty of the applicant, he cannot be discriminated and, as such, the punishment is contrary to law.
11. Moreover, misconduct per se is not capable of precise definition but any negligence in performance of duties per se would not be misconduct unless it is culpable. Though applicant has not asked for the vigilance report, yet when the report has been the basis of show cause notice issued to applicant, respondents, as a model employer, in the wake of principles of natural justice, should have suo motu supplied the same to the applicant. For want of vigilance report, as mentioned in applicant's reply to show cause notice, applicant has been deprived of a reasonable opportunity to defend.
12. As I find that bus was plying in Connughat place area and for want of exact particulars of violation of the permit condition, allegations on mere suspicion and surmises would not take place of proof and cannot be the basis of punishment upon applicant.
13. In a supervisory capacity, a remote supervision would not be a misconduct, unless it is established on record that the area in which the bus was plying violating permit condition was under the jurisdiction of applicant and only then the finding of guilt can be arrived at against applicant. As I find that no material has been brought on record to establish the aforesaid punishment imposed upon applicant and the same is without any justification and does not pass the test of a common reasonable prudent man, the finding arrived at against applicant is perverse.
14. The appellate authority in its order on mere reiteration of the findings of the disciplinary authority has not considered the contentions raised by applicant and the order passed is a mechanical exercise and a non-reasoned one.
15. Resultantly, OA is allowed. Impugned orders are set aside and consequences to follow in law. No costs.