Central Administrative Tribunal - Delhi
R. S. Pathania S/O Gurbachan Singh vs Commissioner Of Police on 20 July, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI Original Application No.1584 of 2010 This the 20th day of July, 2011 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE DR. RAMESH CHANDRA PANDA, MEMBER (A) R. S. Pathania S/o Gurbachan Singh, R/o D-8 Police Colony, Pitampura, Delhi. Applicant ( By Shri Ajesh Luthra, Advocate ) Versus 1. Commissioner of Police, PHQ, MSO Building, IP Estate, New Delhi. 2. Joint Commissioner of Police (Headquarters), PHQ, MSO Building, IP Estate, New Delhi. 3. Deputy Commissioner of Police, West District, PS Rajouri Garden, Delhi. Respondents ( By Shri B. N. P. Pathak, Advocate ) O R D E R Justice V. K. Bali, Chairman:
R.S. Pathania, an Inspector in Delhi Police, the applicant herein, has filed this Original Application under Section 19 of the Administrative Tribunals Act, 1985 calling in question order dated 15.1.2010 vide which while confirming the show cause notice issued to him, he has been inflicted the punishment of censure, as also order dated 10.3.2010 vide which his appeal carried against the order aforesaid has since been rejected.
2. Brief facts of the case reveal that a show cause notice for censure was issued to the applicant and ten others holding different posts in Delhi Police, named in the notice, on the allegations that Nangal Rai Resident Welfare Association had submitted a complaint to the Commissioner of Police, Delhi that shopkeepers of Nangal Rai Market (below Janak Setu Flyover) had encroached the road up to ten feet and also below the flyover, and that repeated requests to SHO/Maya Puri had gone in vain. It was further alleged that beat staff of the police station were also involved in the encroachment and making a good buck. An enquiry into the matter was conducted by the Vigilance Branch/PHQ which revealed that Nangal Rai Market (below Janak Setu flyover) was found encroached by shopkeepers of the area. Two persons namely Hemant Seth and Naresh Ahuja, who were running business of ice cream and water supply, had parked their trolleys below the flyover. Further, shopkeepers namely M/s New Handloom, M/s Chandan Suit Emporium, M/s Goyal Handloom House and M/s Haryana Handloom House had also encroached upon the service road and the entire area below the flyover. Moreover, the E.O. also visited the area of Pankha Road behind Aditi Apartment. Service road of the said area was also found fully encroached by building material suppliers, namely M/s Delhi Iron and M/s Garg Building Material Stores. One unauthorized TSR stand was also found running behind Aditi Apartment, and two TSRs having UP registration numbers were also found ferrying passengers from the said stand. During the course of enquiry, it was found that there was encroachment at Nangal Rai Market as well as on Pankha Road behind Aditi Apartment. Slackness on the part of the beat staff named in the show cause notice was alleged. The applicant, being SHO/Maya Puri was alleged to have also failed to keep proper supervision over the staff.
3. In the impugned order the disciplinary authority by a common order dealt with the case of all the delinquents. Insofar as the case of the applicant is concerned, the same has been dealt as follows:
Inspr. Rajender Singh Pathaniya, No. D-I/1027, SHO/Maya Puri mainly pleaded in his reply that all kind of encroachment under the Janak Setu Flyonver and Adity Appartment Pankha Road have since been removed. Concerned Division Officer, Beat Staff and other staff posted in PS Maya Puri have also been briefed in the evening Roll Calls that strict action be taken against the encroachments to ensure sufficient space for pedestrians and also to ensure free flow of Traffic. Rehri Patriwalas in the area of Nangal Rai Market below Janak Setu Flyover have also been removed. Penal action had also been taken u/s 83/97 D.P. Act. During the years 2008 & 2009 (upto the month of August), 12 Kalandras have been prepared in which 36 persons have been arrested and Ld. MM imposed a penalty of Rs 100/- on each. He also pleaded that as per the NCT of Delhi Laws (Special Provisions) Act-2007 status quo as on 01.01.2006 is to be maintained in respect of encroachments by unauthorised developments in the form of encroachments by amongst others, Hawkers and urban street vendors. He should ensure that post of this date no new activities of this nature are permitted. These Rehri Patriwalas and Hawkers are selling their goods under the Janak Setu Flyover for the past several years and were having Tehbazari issued by the MCD office for the year from 1982 to 2006.
Inspr. Rajender Singh Pathaniya, No. D-I/1027 was heard in O.R. on 05.01.2010. The plea taken by him is that he has briefed his staff during Roll Call and also initiated action under D.P. Act is not tenable as rampant encroachment was noticed by the Enquiry Officer of the Vigilance Branch in the area under Janak Setu, Service Road, below Janak Setu and by building material suppliers near Aditya Apartment, Pankha Road. Failure to prevent encroachment in spite of repeated instructions is a serious lapse. The appellate authority dealt with the matter by observing as follows:
I am not convinced with the pleas of the appellant. It was clear directions of CP, Delhi that all such type of encroachment should not be permitted on major roads which have already been identified by the Joint CP/Traffic vide his letter No. 2713-19/SO/Jt.CP/Traffic dated 10.11.2007. As far as other roads and markets are concerned. But the appellant did not comply the instructions of the senior officers as it has been confirmed from the vigilance enquiry report that rampant encroachment was made in the area of under Janak Setu, Service Road below Janak Setu etc. It was the duty of the appellant being SHO to ensure that the encroachment is not allowed in the market. He can not be absolved from his responsibility merely on the pretext that the beat and Division staff was briefed and directed properly. The encroachment in the area caused hindrance to the smooth flow of traffic and well as problems to the general public. The appellant miserably failed to remove the encroachment despite repeated directions in this regard. The illegal encroachment in Nangal Rai Market clearly reveals that the appellant, being a SHO has no control over the Beat/Division staff working under him and failed in his supervision. As such the appellant has been found negligent in this case for which the punishment awarded by the disciplinary authority is not excessive and the same is maintained. The appeal is rejected. The defence projected by the applicant, as may be made out even from the order passed by the disciplinary authority in the portion extracted above, was that status quo as on 1.1.2006 was to be maintained in respect of encroachments by unauthorized developments and encroachments, among others, by hawkers and street vendors. The applicant, it is stated, was to ensure that after the said date no new activities of the nature were permitted. It is further stated that the hawkers and vendors were selling their wares under the Janak Setu flyover for the past several years and were having tehbazari issued by MCD for the years from 1982 to 2006. We may at this stage refer to the reply to the show cause notice, wherein it has inter alia been mentioned as follows:
(v) That most respectfully it is submitted that though I have been posted as SHO/Mayapuri since July 2008, these rehri partiwalas and hawkers are selling their goods under the Janak Setu Fly over for the past several years and were having Tehbazari issued by the MCD office for the year from 1982 to 2006. Moreover there is no taxi stand in the area of Pankha road behind Aditi Apartments as alleged and there is a possibility that the running vehicles may halt to drop the passengers and it is the duty of STA and Traffic police to check the vehicles playing with other states registrations number. (Annex-E)
(vi) It is worth pointing out here that the office of the MCD (West Zone) Rajouri Garden in July 1996 submitted a letter to SHO/Mayapuri stating that the squatters may not be disturbed till the decision for providing them alternative sites. Further Smt. Kiran Chaudhary Honorable Member Delhi Legislative Assembly wrote a letter dated 27.01.99 to Sh. V.K. Duggal, the Commissioner MCD Delhi to provide alternative space to the street vendors of the Nangal raya Fly Over or demarcated for them. (Copies enclosed as Annex-F & G) Learned counsel representing the applicant, has brought to our notice contents of order dated 19.12.2007 (Annexure A-10), which is an order from the office of Commissioner of Police, Delhi. The same reads as follows:
As per the NCT of Delhi laws (Special Provisions) Act-2007, status quo as on 1st January, 2006 is to be maintained in respect of encroachments, unauthorised developments in the form of encroachments by, amongst others, hawkers and urban street vendors. It is, therefore, necessary that all action taken against hawkers/vendors should be in accordance with the provisions of the Act. It should be kept in mind that the status quos date of 1st January, 2006 is critical. We should ensure that post this date no new activities of this nature are permitted. Our policy, in general, against encroachments should be based on the provisions of the Act. In respect of weekly bazaars not being allowed to be held, we should by and large go by the list of weekly bazaars in various zones of the MCD as specified in the MCDs standing committees resolution no. 380 dated 18.12.2004 as forwarded by the Addl. Secretary to LG dated 26.06.2006 9 (copy enclosed herewith). This would clearly indicate that 223 authorised and unauthorised weekly markets, which were in operation at the relevant time. If there are some other weekly bazaars which come into existence between 18.12.04 and 1.1.06 then information regarding these can be obtained from the Zonal MCD office.
This notwithstanding, action would continue to be taken against hawkers/vendors/encroachments on carriageways and pavements alongside carriageways of the ring road, outer ring road, arterial roads and other main roads as they obstruct the movements of pedestrians and traffic. The applicant came to be posted as SHO/Maya Puri in July, 2008.
4. Shri Ajesh Luthra, learned counsel representing the applicant, on the basis of the contents of the show cause notice, pleadings made in the OA and the accompanying documents, would vehemently contend that the crucial issue was as to whether there were any encroachments after 2006 when status quo order was passed, and in particular, after July 2008, when the applicant came to be posted as SHO/Maya Puri. It is the positive case of the applicant that insofar as, those who were already squatting by way of unauthorized occupation or construction could not be disturbed in view of the order passed by the court on that behalf, and which was communicated to the police officers as well, and insofar as the plea of the applicant that there had been no new encroachments is concerned, there is no finding given by any of the authorities.
5. We find hardly any reply forthcoming on the contentions raised by the learned counsel representing the applicant, as noted above, from the learned counsel representing the respondents. It cannot be disputed that unauthorized constructions and encroachments have choked traffic in Delhi. It is a matter of common experience for every commuter on Delhi roads that there are traffic jams for variety of reasons, one of which can well be attributed to unauthorized constructions and encroachments. The matter was indeed serious and the police officers also had duty to prevent and remove encroachments. However, in the present case, unless there was a finding that there were encroachments after 1.1.2006 when status quo order had been passed and, in particular, during the period the applicant remained posted as SHO/Maya Puri, no order of punishment could be passed against the applicant. There is indeed a mention of the enquiry that was held in the matter preceding show cause notice to the applicant and others, but the respondent authorities have not chosen to refer even from the said enquiry to return a finding that the encroachments or unauthorized constructions were after January 2006 or after July, 2008. In the context of the facts as mentioned above the applicant had no authority to remove existing encroachments, i.e., constructions or encroachments which came about before 2006. He could well have been hauled up for contempt as also dereliction of duties by disobeying order dated 19.12.2007 (Annexure A-10) of the Commissioner of Police. If surely, the encroachments and unauthorized constructions had come up after 2006 and particularly after July 2008, the applicant could not escape liability. However, for that, there has to be a finding by the authorities which passed the impugned orders in the present case. There being no finding on the defence projected by the applicant repeatedly at every stage, including before this Tribunal, there would be no choice with us but for to set aside the impugned orders and remit the matter to the disciplinary authority to pass fresh order. The disciplinary authority in the liberty given to it would obviously deal with the stand taken by the applicant as reflected above, and if the same is to be rejected, to do so by recording reasons therefor.
6. In view of the discussion made above, this Original Application is partly allowed. Impugned orders dated 15.1.2010 and 10.3.2010 passed by the disciplinary and appellate authorities respectively, and such other orders as have been passed only on the basis of order of the disciplinary authority, are quashed and set aside, and the matter is remitted to the disciplinary authority to pass fresh orders in the light of the observations made by us in this order. There shall, however, be no order as to costs.
( Dr. Ramesh Chandra Panda ) ( V. K. Bali )
Member (A) Chairman
/as/