Central Administrative Tribunal - Delhi
Asi (Exe.) Gida Ram vs Government Of Nct Of Delhi on 17 December, 2009
Central Administrative Tribunal Principal Bench OA No.720/2009 New Delhi, this the 17th day of December, 2009 Honble Mr. Justice M. Ramachandran, Vice Chairman (J) Honble Dr. Ramesh Chandra Panda, Member (A) ASI (Exe.) Gida Ram (4597/D, PIS No.28780919) S/o Sh. Parta Ram R/o B-25, Main Road, Kaushik Enclave, Burari, Delhi 110 084. Applicant. (By Advocate : Shri Saurabh Ahuja) Versus 1. Government of NCT of Delhi Through Chief Secretary Delhi Secretariat, New Delhi. 2. Commissioner of Police Police Head Quarters, IP Estate, MSO Building, New Delhi. 3. Joint Commissioner of Police Northern Range, Delhi Through Commissioner of Police, Police Head Quarters, IP Estate, MSO Building, New Delhi. 4. Deputy Commissioner of Police North District, Delhi Through Commissioner of Police Police Head Quarters, IP Estate, MSO Building, New Delhi. 5. Special Commissioner of Police (Vigilance) Through Commissioner of Police Police Head Quarters, IP Estate, MSO Building, New Delhi. Respondents. (By Advocate : Mrs. Renu George) : O R D E R : Dr. Ramesh Chandra Panda, Member (A) :
Shri Gida Ram, the Applicant herein, has been working as Assistant Sub-Inspector of Police (ASI) in Delhi Police and has filed this Original Application under Section 19 of the Administrative Tribunals Act, 1985 and sought the reliefs to quash & set aside (a) the order dated 22.8.2007 (Annexure-1) whereby a departmental inquiry was initiated against him; (b) the Inquiry Officers report and findings dated 10.1.2008 (Annexure-2) wherein charge was held as proved; (c) the order of the Disciplinary Authority dated 29.5.2008 (Annexure-3) by which (i) punishment of stoppage of increment for a period of 2 years which will have effect of postponing his further increments; and (ii) the suspension period was treated as not spent on duty; (d) the Appellate Authoritys order dated 2.12.2008 (Annexure-4) by which his appeal was rejected; and (e) the order dated 27.6.2008 (Annexure-5) whereby the name of the Applicant was brought in the Secret List w.e.f. 29.5.2008 for 3 years period. He also prayed to be granted all consequential benefits including, seniority, promotion and difference in pay along with interest at 18% per annum.
2. Brief facts of the case would reveal that the Applicant was appointed as Constable (Exe.) in Delhi Police in 1978 and thereafter he was promoted to the rank of ASI (Exe.). The Applicant while posted at Police Post Burari (PS Timar Pur) was entrusted with the investigation of the Case-FIR No.313/2007 U/S 147/323/341/426/452/506/34 IPC, PS Timar Pur. He requested Inspector Suresh Chand Dagar , the SHO, Timar Pur, P.S. to permit him to proceed for the arrest of accused persons in the said criminal case. But the SHO told the Applicant orally that he had the instructions from the senior officers not to arrest the accused persons in the said case. The Applicant requested the SHO to confirm the said direction in writing but the SHO for one reason or another was evading to give such directions in writing to the Applicant. Thereafter, the Applicant has submitted DD entry No.26 dated 07.06.2007 (Annexure-6) wherein he specifically mentioned that SHO has instructed him not to arrest the accused persons in the said case. It is the case of the Applicant that in the case diaries of the said criminal case dated 04.06.2007, 05.06.2007, 09.06.2007, 15.06.2007 and 17.06.2007 he specifically mentioned that the SHO, Timar Pur informed him not to arrest the accused persons in the said case as in the said matter some vigilance inquiry was going on. The applicant has submitted the said case diaries to the SHO and the SHO had forwarded the same to the concerned Assistant Commissioner of Police (ACP). The Applicant has also mentioned about the said directions of the SHO in DD No.18 dated 17.06.2007 (Annexure-7). It was informed during the hearing that due to the complaint received by the Commissioner of Police from the complainant in the said Criminal Case, the SHO Timar Pur was transferred and the Applicant was suspended. The Respondents started departmental inquiry against the Applicant under Section 21 of Delhi Police Act vide order dated 22.8.2007 (Annexure-1) on the ground that he made wrong DD entry in the Roznamcha that SHO, Timar Pur had instructed him not to arrest the accused persons and informed the complainant that his seniors directed him not to arrest the accused in the said criminal case. The Applicant was placed under suspension on 24.7.2007. He was reinstated into service on 21.8.2007. The Applicant submits that in the inquiry 3 PWs were examined and no evidence has come on record that the Applicant has made false DD entry or the Applicant has informed Sh. P. K. Gupta that he has been instructed by SHO, Timar Pur not to arrest the accused persons in the said criminal case. But the Inquiry Officer framed the charge against the Applicant despite no evidence which is in violation of Rule 16 (iv) of Delhi Police (Punishment & Appeal) Rules, 1980. The Applicant submitted his representation against the charge to the Inquiry Officer. A copy of the same is annexed with the OA as Annexure-8. The Inquiry Officer while submitting his findings has ignored the contentions raised by the Applicant in his representation. The Applicant preferred his representation against the findings of the Inquiry Officer to the Disciplinary Authority (Annexure-9). The Disciplinary Authority has ignored the relevant material and the defense of the Applicant and finally, vide his order dated 29.5.2008 (Annexure-3) inflicted on him major penalty of withholding of one increment for a period of 2 years, which would have the effect of postponing of his future increments and his suspension period (24.7.2007 to 21.8.2007) was treated as not spent on duty. The Applicant filed an appeal (Annexure-10) against the final order praying for reconsideration of the case and to quash and set aside the impugned order of punishment. The Appellate Authority vide order dated 02.12.2008 (Annexure-4) rejected the appeal of the Applicant. The Applicant states that the Respondents illegally, arbitrarily and without application of mind have brought the name of the Applicant in Secret List of doubtful integrity with effect from 29.5.2008 and the same is in violation of SO No.265. Hence, he has come before this Tribunal in the OA.
3. Notice was issued to the Respondents on 23.3.2009 and the Counter reply was filed on 8.7.2009 on behalf of all the Respondents. When the case came up for hearing on 27.10.2009, Shri Sourabh Ahuja, the learned Counsel for the Applicant submitted that the Applicant relied on Annexure-6 and submitted that as on 7.6.2007, the Applicant mentioned details in the Daily Diary pertaining to the case No.FIR No.313/2007. He further submitted that the copy of the DD entries were not made available to the Applicant during the inquiry. He argued that such entries would prove the Applicants case and resultantly the charge would not be sustainable. Ms. Renu George placed before us the File No.XVI/149/07/North Dist. on the subject of suspension & DE case file of ASI-Gida Ram. We also called for the Original DD and case Diary from Dy. Commissioner of Police. Some of these (not all) were produced before us and after perusal of the same had been returned.
4. Shri Sourabh Ahuja, learned Counsel for the Applicant took us through the pleadings to highlight that the Applicant did not make any wrong entry in DD as well as Case Diaries. On the other hand, he had made correct entry and recorded that as per the instructions of the SHO, Timarpur, PS, the Applicant did not arrest the accused. After appropriate entries the Applicant submitted those to SHO who has signed the such entries. Thus, the Applicant has safeguarded his interest for which he could not have been proceeded in a departmental inquiry. He further submitted that it was the cleverness of the SHO which has brought the Applicant for a disciplinary case, for no fault of his. He also highlighted that on receipt of the complaint by the Commissioner of Police, the SHO was transferred to the 9th Battalion of DAP and the Applicant was suspended. After realizing that Applicants suspension was not proper he had been reinstated into service. The Applicant was neither furnished the copy of the relevant Case Diary and DD, nor the I.O. properly examined the same. The relevant aspects, Shri Ahuja argues, has not been taken into account by the Disciplinary Authority so much so the oral evidence of SHO, Timarpur was relied upon whereas the documentary evidence was not examined. In this context, he submitted that this should be treated as a case of no evidence and the Original Application should be allowed.
5. Mrs. Renu George, the learned Counsel for the Respondents very strongly opposed the arguments placed by Shri Ahuja. Main contentions are (i) The SHO (Inspector Suresh Chand Dagar) did not instruct the Applicant not to arrest the accused in the case (FIR No.313/2007) and the entry made to that effect in DD No.18 dated 17.6.2007 by the Applicant was on his own which she termed as wrong entry. (ii) The said SHO has also denied to have received Case Diaries as submitted by the Applicant. (iii) The Applicant was given opportunity to produce remaining Defence Witnesses but after one month of the completion of the enquiry one typed statement of Pawan Kumar Gupta was received through post and the same was not considered by I.O. as Shri Gupta was not examined and cross examined. Mrs. George submitted that principles of natural justice has been complied with and proper procedure followed in the disciplinary case and also in place Applicants name in the Secret List.
6.1 Before we analyse the rival contentions to adjudicate the matter, we examine now how the disciplinary case took shape. The Inquiry Officer after recording the deposition of 3 PWs framed following charge against the applicant :
CHARGE I, Sohan Vir Singh, charge you ASI Gida Ram, No.4597/D, PIS No.28780919 that while posted at Police Post Burari, Police Station Timar Pur you were entrusted investigation of case FIR No. 313/07 U/s 147/323/341/426/452/506/34 IPC. You made a DD entry No.18 on 17.06.2007 in PP Burari Roznamcha that you had asked the SHO Timar Pur about the arrest of accused persons in this case and SHO Timar Pur told you not to arrest the accused persons. You had also made entry to the effect that SHO Timar Pur also told you that senior officers have ordered not to arrest the accused persons in this case. While the then SHO Timar Pur Delhi Shri Suresh Dagar denied to have given such isntructiosn. It is also alleged against you that you made wrong entry at your own in the Roznamacha reasons best known to you. It is also alleged against you that you informed the complainant Shri P.K . Gupta that you have been directed by senior officers not toeffect arrest in this case.
The above act on the part of you ASI Gida Ram, No.2584/N know 4597/D) for not arresting the accused person in above said case and making a wrong DD entry in Roznamacha, amounts to gross misconduct, dereliction in the discharge of your official duties and unbecoming of a police officer rendering hyou liable for departmental action under section 21 of Delhi Police (Punishment & Appeal) Rules, 1980 and punishable under section 21 of Delhi Police Act, 1978.
6.2 The charge was served on the Applicant on 12.11.2007 to which he did not plead guilty and furnished list of 2 Defence Witnesses. But only one Defence witness was examined. On 07.01.2008, the Applicant submitted his defence statement. The I.O. submitted inquiry report on 10.01.2008 and held the charge as proved. The part of the report dealing with Discussion of Evidence and Conclusion is extracted below :
DISCUSSION OF EVIDENCE Departmental Enquiry was initiated against ASI Gida Ram for making a wrong DD entry at his own in the Roznamcha that the then SHO/Timar Pur had told you not to arrest the accused persons in case FIR No.313/07 U/s 147/323/341/426/452/506/34 IPC PS Timar Pur. Moreover, he had also informed the complainant Shri P.K. Gupta that he was directed by senior officer not to affect arrest in this case.
Form the enquiry it is clear that ASI Gida Ram has lodged DD No.18 dated 17.06.07 PP Burari in his own handwriting mentioning all the above points and Inspr. Suresh Dagar the then SHO/Timar Pur Delhi has refused of giving any such directions to ASI Gida Ram.
No reasonable reply or ground is given by the defaulter ASI Gida Ram in his defence statement about these above lapses. He has admitted of writing the said DD entry and said that Shri Suresh Dagar has backed out and did not support him. He also raised a point that he was not provided the copy of Case Diaries of the said case for his defence. However, as per the report of SHO/Timar Pur no CD of the said case were received till then. Moreover the copies of Case Diaries of the case are not relied upon documents.
CONCLUSION From the above discussion of evidence of prosecution and submission of defence statement the charge against the defaulter is proved.
7. It is not in dispute that the Applicant was investigating officer in the case in FIR No.313/2007 of Timarpur P.S. The admitted fact by the Applicant is that he has recorded in the Case Diary and DD that the SHO instructed him not to arrest the accused in the said Criminal case. The Applicant has recorded the said instruction not once but day after day entries exist in the records (Daily Diaries). The normal procedure and practice in the P.S. is that copy of the DD and Case Diaries are placed either daily or frequently by the Investigating Officers before the SHO who after recording his comments forward the same to ACP concerned. The disciplinary case has been initiated by Dy. Commissioner of Police on the basis of the Note dated 26.6.2007 submitted by SHO Timarpur (G. Singh) that the Applicant has made a false entry in the Roznamcha. The PW-1 did not complain to his seniors about the entries. In the present case, the Applicant has specifically recorded such instructions and submitted to his senior viz SHO who after perusing the same had forwarded to the concerned ACP. Inspector Suresh Chand Dagar (PWI) informed in the inquiry that He being SHO he never gave him (ASI Gida Ram) orders nor to arrest the accused in the said case whereas ASI Gida Ram has mentioned this fact in DD No.18 dated 17.06.2007 PP Burari P.S. Timar Pur In the cross examination, the relevant part of PWIs evidence reads as follows.
5. It is true the Mussannas are forwarded by ACP and sometimes the IO make returning entries of 3-4 calls in a single entry due to which the senior officers could not read each and every aspect : In DD No.18 dated 17.06.2007 PP Burari the IO made returning entry of DD No. 12 & 16 and in the end he made entry about the present case and may be due to this the matter slipped.
Yes, it is true upto some extent that if one DD entry contains information about one matter only than that cannot go unseen.
As per his memory known of the Case Diary of the present case was forwarded by him.
He does not remember whether he has written to ASI Gida Ram to submit the Case Diaries of this case.
8. This is a case where the Applicant has very seriously and periodically recorded the instructions/directions issued by his Controlling Officer namely, Inspector Suresh Chand Dagar, the SHO, Timarpur at that point of time. He recorded DD Entry No.26 dated 7.06.2007 and subsequently DD Entry No.18 dated 17.06.2007 and in the Case Diary of the said criminal case the Applicant has recorded the instruction of the SHO not to arrest the accused in the criminal case on 04.06.2007, 5.06.2007, 9.06.2007, 15.06.2007 and 17.06.2007. It is apt to note that having recorded the instructions given and seen by his senior Controlling Officer namely SHO, Timarpur, PS he is being found fault with. The SHOs responsibility is to check the DD entries made by various subordinates who work under his control almost on daily basis to ensure that follow up action on certain important entries are taken. Further, the subordinate officers like the Applicant carry on the investigation in criminal cases which need also to be periodically reviewed when the extracts of the case diaries are furnished to him. The SHO, Timarpur as PW-1 has informed in the cross examination that sometimes the I.O. makes more than 3 to 4 entries in a single entry and, therefore, it was not possible for him to verify every aspect of the entries. In DD No.18 dated 17.06.2007, I.O. made returning entry of DD No.12 & 16 and in the end he made entry about the present case and, therefore, PW-1 (SHO Timarpur) stated in the cross examination that this matter slipped from his notice. When a matter concerning him recorded in the DD No.18 slips from the notice of the SHO, it would not be the responsibility of the Applicant to carry the burden. Since no entry refuting such instruction by the SHO exists, it does indicate the acceptance of the entries by the Applicant in the matter of that criminal case not to arrest the accused. It is not our responsibility to find out what are the mistakes the SHO has committed in the matter. Suffice us to say that the Applicant has properly, legally and appropriately recorded, not on one occasion but on many occasions, in both DD as well as Case Diary. Therefore, we come to the considered conclusion that no evidence was brought forward against the Applicant as charged and we find that in the disciplinary case he has been punished with extraneous factors rather than on the relevant matters. When the Applicant has admitted that he has written those entries only on instruction and the SHO refused that he has not given such instructions and such refusal is being raised even after the perusal of all those entries in the Case Diary and DD entries, we wonder how the documentary evidence was ignored and oral evidence tendered by PW-1 (SHO Tuimarpur) was accepted by the I.O., Disciplinary and Appellate Authorities. Thus, we find that in this case no action would lie against the Applicant.
9. Now we advert to the nature of the charge explanation furnished and available documentary evidence. We find that the Applicant was charged with only one charge. Having gone through the charge, we analysed the I.Os report with reference to the discussions and findings. It is noted that relevant matters have been ignored by the I.O. in his report. The order of the Disciplinary Authority being based on the I.Os report has not examined the relevant fact of the perusal of entries by SHO. The SHO did not refute the entries then. In the enquiry he has stated that he has not given instructions. This being contrary to the Case Diary, DD Entries, we would not give any credence to his statement. The Disciplinary Authority has acted in an arbitrary manner and his order imposing punishment, in our opinion, is both illogical, arbitrary and perverse.
10. At this stage, we examine the settled legal position on the powers of the Tribunal as to what extent this Tribunal can interfere in the matters of disciplinary proceedings. We note our power is limited. We went through many judgments of Honourable Supreme Court of India in the matters relating to the Inquiry, and orders of the Disciplinary and Appellate Authorities and identified the guiding principles in the subject. Some of the relevant decisions of the Honourable Apex Court referred to by us are viz: B.C. Chaturvedi versus Union of India [1995 (6) SCC 749]; State of Tamil Nadu versus S. Subramanyan, [1996 (7) SCC 509]; State of Tamil Nadu versus K.V. Perumal [1996 (5) SCC 474]; Om Kumar versus Union of India (2001) 2 SCC 386); M.V. Bijlani versus Union of India [2006 SCC - 5-88] ; State of Rajasthan versus Mohd Ayub Naz [2006 SCC-1-589SC] ; Govt. of A.P. versus Nasrullah Khan [2006 STPL (LE) 36733 SC]; Govt. of India Versus George Philip [2007 STPL (LE) 37755 SC]; Union of India Versus S.S. Ahluwalia [2007 SCC (7) 257] ; and Moni Shankar versus Union of India [2008 SCC (3) 484]. The common threads running through these decisions of the Honourable Apex Court are that generally the Tribunal should not interfere with the decision of the executive in the matters of disciplinary proceedings unless those are found to be suffering from certain procedural, legal, statutory improprieties and infirmities. On certain grounds only the Tribunal can closely scrutinize the relevance or irrelevance of facts; available or absence of evidence; proportionality or otherwise of the punishment; compliance or otherwise of the audi alteram partem; compliance or otherwise of the Wednesbury principle, probability of preponderance doctrine and the like. We are guided by the settled legal position of this Tribunal and we briefly summarise as follows :-
* The Tribunal can interfere with the decision of the Disciplinary / Appellate / Reversionary Authority, if such a decision is illogical or suffers from procedural impropriety or deficiency in the decision making process or was shocking to the conscience of the Tribunal in the sense that such decision was in defiance of logic or moral standards.
* The Tribunal exercising the powers of Judicial review is entitled to consider whether while inferring commission of misconduct on the part of the delinquent officer, relevant piece of evidence has been considered and irrelevant facts have been excluded there from. Inference on facts must be based on evidence which meet the requirements of legal principles.
* The Tribunal is entitled to arrive at its own conclusion on the premise that evidence adduced in the enquiry meets or does not meet the requirement of burden of proof, namely preponderance of probability.
11. Taking into account the total facts of the case and the settled legal position in the matter, we come to the considered conclusion that the relevant matters have not been taken into account while deciding the disciplinary case against the Applicant, as a result of which, the punishment order passed against the Applicant is not legally sustainable. In the result, we find that the Applicant succeeds in his prayer. We, therefore, quash and set aside (i) the charge memo issued in the order dated 22.08.2007, (ii) Inquiry Officers report dated 10.01.2008 in which the charge was held as proved, (iii) the orders of the Disciplinary Authority dated 29.05.2008, (iv) Appellate Authority order dated 2.12.2008 and (v) also the order of the Respondents dated 27.06.2008 whereby the name of the Applicant was brought in the Secret List w.e.f. 29.05.2008. We, therefore, direct the Respondents to grant the Applicant all consequential benefits including seniority, promotion and pay differentials, if any.
12. In view of the above directions to the Respondents, the Original Application having full merits is allowed, leaving the parties to bear their own costs.
(Dr. Ramesh Chandra Panda) (M. Ramachandran)
Member (A) Vice Chairman (J)
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