Central Administrative Tribunal - Delhi
Kailash Chandra vs Comm. Of Police on 7 September, 2016
1 OA No.4172/2012 and
connected case
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A. No.4172/2012
with
O.A. No.4173/2012
Reserved On:30.08.2016
Pronounced on:07.09.2016
HON'BLE MR. JUSTICE M.S. SULLAR, MEMBER (J)
HON'BLE MR. P.K. BASU, MEMBER (A)
(1) OA No.4172/2012
Inspector Kailash Chandra
No.D/2829
R/o 10-M, Police Colony,
Model Town-II, New Delhi. ....Applicant
(2) OA No.4173/2012
Inspector Kailash Chandra
No.D/2829
R/o 10-M, Police Colony,
Model Town-II, New Delhi. ....Applicant
(Argued by: Mr. M.K. Bhardwaj, Advocate)
Versus
Govt. of NCT & Others Through
1. The Commissioner of Police,
Police HQ, I.P. Estate, New Delhi.
2. The Joint Commissioner of Police,
South Western Range,
MSO Building,
I.P. Estate,
New Delhi.
3. The Dy. Commissioner of Police,
West District,
New Delhi. .....Respondents
(By Advocates : Shri B.N.P. Pathak for Respondents in OA
No.4172/2012
Mrs. Sumedha Sharma for Respondents in
OA No.4173/2012)
2 OA No.4172/2012 and
connected case
ORDER
Justice M. S. Sullar, Member (J) As identical questions of law and facts are involved, so we propose to decide the Original Application (OA) bearing No.4172/2012 titled as Inspector Kailash Chandra Vs. Govt. of NCT and Others (for brevity Ist case) and OA No.4173/2012 titled as Inspector Kailash Chandra Vs. Govt. of NCT and Others (for short 2nd case), between the same parties, arising out of similar impugned orders of Disciplinary Authority (DA) and Appellate Authority (AA), in order to avoid the repetition of facts. Moreover, the learned counsel for the parties are fairly at ad idem, that indicated OAs can effectively be decided by a single judgment.
2. The pith and substance of the facts and material, relevant for deciding the instant OAs (Ist case), and exposited from the record, is that, applicant, Inspector Kaliash Chandra was posted as SHO, PS Kirti Nagar, New Delhi, at the relevant time. He was stated to have considerably delayed the registration of FIRs in 7 Motor Vehicle Theft (MVT) cases. His explanation dated 27.12.2010 (Annexure A-3) was accordingly called, to which he filed the reply dated Nil (Annexure A-4), which was found unsatisfactory by the competent authority.
3. As a consequence thereof, impugned Show Cause Notice (SCN) dated 18.03.2011 (Annexure A-5), to show 3 OA No.4172/2012 and connected case cause as to why his conduct be not Censured, was issued to him in the following manner:-
"The following cases of motor vehicle theft u/s 379 IPC have been registered on the dates as shown against each at police station Kirti Nagar. These cases have however been registered after a delay as shown below:-
S.No. FIR No. Date of Delay
Registration occurred in
registration
of the
cases
1. 380/10 16.12.10 12
2. 383/10 17.12.10 35
3. 384/10 18.12.10 56
4. 385/10 19.12.10 17
5. 387/10 19.12.10 3
6. 388/10 20.12.10 2
7. 393/10 21.12.10 40
Accordingly, an explanation of Inspector Kailash Kukreti (sic) No.D-2829 (the then SHO/Kirti Nagar) was called vide this office No.16565-57/P-III/West, dated 27.12.10 but his reply has not been found satisfactory.
The above said act on the part of Inspr. Kailash Kukreti No.D-2829 amounts to gross misconduct, negligence and dereliction in the discharge of his official duties.
Inspr. Kailash Kukreti (sic) No.D-2829 (the then SHO/Kirti Nagar) is, therefore, called upon to show cause as to why his conduct should not be Censured for the above said lapse. His written reply, if any, should reach this office within 15 days from the date of its receipt, failing which it will be presumed that he has nothing to say in his defence and ex-parte decision will be taken on merits".
In pursuance thereof, he filed the reply (Annexure A-5A).
4. Taking into consideration the allegations & material on record, and treating the reply unsatisfactory, the conduct of the applicant was Censured, by impugned order dated 24.05.2011 (Annexure A-1) by the DA. Similarly, the appeal filed by him was dismissed, vide impugned order dated 10/18.08.2011 (Annexure A-2) by the AA as well.
5. Similarly, in (2nd case) it revealed that, from 01.10.2010 to 30.06.2010, 81 cases of MVT were reported in the area of Police Station, Kirti Nagar, New Delhi. Out of 81 reported cases, only 2 (two) cases were worked out. It 4 OA No.4172/2012 and connected case was also noticed, that there has been number of robbery incidents in the area of PS Kirti Nagar, New Delhi, but none of the important robbery cases were solved by the applicant, in spite of repeated instructions & discussions held in crime review meeting and police station visits by the superior officers. He was asked to explain the matter in this regard.
6. Consequently, impugned SCN dated 16.07.2010 (Annexure A-5) (in 2nd case) was also issued to the applicant, which reads as under:-
"After perusal of crime diary for the period from 01.01.2010 to 30.06.2010, it has been observed that 81 cases of MV theft have been reported in the area of PS Kirti Nagar during this period against 49 cases in the same period in the year 2009. Out of 81 cases reported, only 2 cases have been worked (sic) out. It clearly shows that SHO Kirti Nagar has failed to take effective preventive measures to keep a check on the increasing incidents of MV theft as well as failed to workout the MV theft cases in spite of repeated instructions/briefing.
There has been number of robbery incidents in the area of PS Kirti Nagar. In FIR No.08/10 u/s 394/397/34 IPC, Ts. 8 lacs were robbed when the complainant was carrying case from one office of Richha & Company, Timber Market to another office for distribution of salary of workers. In FIR No.63/10 u/s 392/34 IPC, sale money of mobile phones amounting to Rs.15,40,000/- which were kept in dickey of the scooter of the complainant were robbed when he was coming to his residence at Kirti Nagar. In FIR No.187/10, u/s 392/34 IPC, one truck was robbed at Maya Puri flyover. It shows that there is no control of local police on the criminals who are operating in the area and committing serious incidents. None of these important robbery cases have been solved in spite of repeated instructions and discussions held in crime review meeting and police station visit. This shows poor performance of Inspr. Kailash Chand Kukreti, SHO/Kirti Nagar in controlling the crime in the area as well as detection of the reported crime.
The above act on the part of Inspr. Kailash Chand Kukreti, No.D/2829 amounts to negligence, carelessness and dereliction in the discharge of his official duties, rendering him liable for disciplinary action, under the provision of Delhi Police (Punishment & Appeal) Rules, 1980.
Inspr. Kaialsh Chand Kukreti (sic) No.D-2829, SHO/Kirti Nagar, is, therefore, called upon to show cause as to why his conduct should not be Censured for the above said lapse. His written reply, if any, should reach this office within 15 days from the date of its receipt, failing which it will be presumed that he has nothing to say in his defence and ex-parte decision will be taken on merit".5 OA No.4172/2012 and
connected case
7. A bare perusal of the impugned order of the DA (in 2nd case) would reveal, that although applicant (Inspector Kailash Chandra) has received a copy of SCN on 22.09.2010, against its proper receipt, his reply was due on or before 06.04.2010, but he did not file any reply to SCN despite reminder dated 06.10.2010, duly acknowledged by the applicant on 16.10.2010.
8. Therefore, finding no alternative, the conduct of the applicant was Censured, vide impugned order dated 26.11.2010 (Annexure A-1) by the DA in accordance with the provisions of Delhi Police (Punishment and Appeal) Rules, 1980 [hereinafter to be referred as "D.P. Rules"], which was maintained by the AA, vide impugned order dated 11.05.2011 (Annexure A-2).
9. Aggrieved thereby, the applicant has preferred the instant OAs, challenging the impugned SCNs and orders, invoking the provisions of Section 19 of the Administrative Tribunals Act, 1985.
10. The case set up by the applicant, in brief, insofar relevant, is that, similar SCNs of Censure issued to other SHOs, namely, Inspectors Jagat Singh, Sunder Singh, Rajesh Kumar and Jai Singh were closed, whereas the conduct of the applicant was Censured, ignoring the Circular dated 24.07.2001 by the DA. Hence, the authority has punished the applicant on pick and choose basis and their action is discriminatory, mala fide and in violation of 6 OA No.4172/2012 and connected case Articles 14 and 16 of the Constitution of India. It was also pleaded that the DA and AA have failed to consider, that applicant was not at all responsible for the delay in registration of FIR. In fact, the delay occurred as complainants did not give their statements to the Investigating Officers (IOs). They were either searching their respective vehicles of their own or they have left the police station for the one reason or the other. As and when complainants gave the statements, the IOs immediately registered the FIRs in MVT cases. He has instructed his subordinate staff to follow the instructions of senior officers. There was no ill motive on his part. Even not a single complaint has been received in causing the delay in registration of the case in MVT cases against the applicant. The authorities have completely ignored this aspect of the matter. It was alleged that the applicant cannot be punished for delayed registration of FIRs by the IOs.
11. It was also pleaded (in 2nd case), that the applicant joined as SHO of PS, Kirti Nagar on 16.03.2010 and even 33 cases of MVT were registered between 01.01.2010 to 15.03.2010, before the applicant joined the post of SHO, PS, Kirti Nagar. Moreover, applicant claimed, that if the commission of offence is to be made a ground for punishing a police officer, then all the officers started from Police Constable to Commissioner of Police are liable for punishment as all the officials are equally responsible to 7 OA No.4172/2012 and connected case stop crime. He took all the effective steps to control the theft of motor vehicles and to prevent the crime.
12. According to the applicant, that an employee cannot be punished on the basis of his working ability and inefficiency. Such inaction and inefficiency, cannot be construed as misconduct, warranting the penalty of Censure. The applicant has discharged his duty diligently and as per rules. The DA & AA have not applied their mind and ignored the relevant considerations.
13. The applicant has termed the impugned SCNs and orders as illegal, discriminatory, against the principles of natural justice and without jurisdiction. On the strength of the aforesaid grounds, the applicant sought quashing of the impugned SCNs and orders in the manner indicated hereinabove.
14. The respondents refuted the claim of the applicant and filed their replies, wherein it was pleaded that there was a written information of the Commissioner of Police, Delhi that in the month of December, 2010, FIRs in MVT cases were not registered immediately, after the receipt of information of MVT cases. Thereafter, very clear directions were issued to all the SHOs to register the FIRs immediately, after receipt of the information regarding MVT cases, but the applicant, being incharge of Police Station, has not complied with the directions of his seniors in this regard.
8 OA No.4172/2012 and
connected case
15. The case of the respondents further proceeds that he (applicant) being the SHO, should have controlled the crime in the area as per detections of reported crime. It was pleaded that 3 (three) cases of robbery were registered in PS Kirti Nagar, New Delhi, which shows that there was no control of local police on the criminals, who are operating in the area and committing serious offences. It showed poor performance of the applicant in controlling the crime in the area as well as detection of reported crime. Even he did not file the reply to the SCN despite receipt of reminders (in 2nd case). The applicant was stated to have failed to take effective steps to control the crime in the area of his Police Station. There was 65.05% increase in the MVT cases in the area of PS Kirti Nagar. Only 2 cases of MVT were worked out during his (applicant's) tenure as SHO of PS, Kirti Nagar, New Delhi, which proves his lack of sincerity towards his duty.
16. As regards discrimination is concerned, it has specifically been pleaded, by the respondents that the applicant has tried to shift his responsibility on the shoulder of other officers. In order to implement the policy/direction of the senior officers/PHQs, it was obligatory on the part of the applicant to constantly check PCR calls register, whether the MVT cases were being registered or otherwise. He cannot be absolved from his misconduct on the ground of warning issued to other SHOs 9 OA No.4172/2012 and connected case by the DA. It was his responsibility to supervise and direct the staff under his control. Moreover, all other cases of different SHOs were decided keeping in view gravity of negligence as well as facts and circumstances of those cases and delinquent officers were punished according to their misconduct. In the instant case, the conduct of the applicant was Censured after taking into consideration the gravity of misconduct and lack of supervisory duty by the DA. The applicant was definitely at fault, for not implementing the orders of superior officers and for not promptly registering the FIRs in MVT cases. Hence, he cannot claim any discrimination in this regard.
17. Virtually acknowledging the factual matrix and reiterating the validity of the impugned SCNs and orders, the respondents have stoutly denied all other allegations and grounds contained in the main OA and prayed for its dismissal. That is how we are seized of the matter.
18. After hearing the learned counsel for the parties, going through the relevant record with their valuable help and legal provisions, we are of the considered opinion that there is no merit and the instant OAs deserve to be dismissed for the reasons mentioned hereinbelow.
19. What cannot possibly be disputed here is that there is a considerable delay in prompt registration of FIRs in the indicated MVT cases. The applicant, being the SHO, has miserably failed to supervise and check the considerable 10 OA No.4172/2012 and connected case delay in registration and completion of the investigation in MVT cases. A bare perusal of the cases depicted in impugned SCN 18.03.2011 (Annexure A-5) (in 1st case), would reveal, that there is a considerable delay of 12, 35, 56, 17, 3, 2 and 40 days in registering the FIRs No.380/10, 383/10, 384/10, 385/10, 387/10, 388/10 and 389/10, from the date of actual theft of motor vehicles.
20. Sequelly, in the impugned SCN dated 16.07.2010 (Annexure A-5) (in 2nd case) the allegations are that, there is a steep increase in MVT cases and serious robbery cases mentioned (therein). This shows the very poor performance of the applicant in controlling the crime in the area as well as detection of the reported crime.
21. Ex-facie, the arguments of learned counsel for applicant, that the delay has occurred on account of complainants, as they did not come forward to lodge the FIRs and applicant has taken effective steps to control the crime, so he was not at fault, warranting issuance of SNCs for Censure to him, are not only devoid of merit but misplaced as well.
22. As is evident from the record that in the instant cases, the applicant was SHO of PS, Kirti Nagar at the relevant time. Not only that, he miserably failed to supervise the prompt registration of the MVT cases, but at the same time, he completely remained unsuccessful to prevent the thefts of motor vehicles, and crime of dacoity etc. in his area. 11 OA No.4172/2012 and
connected case Insofar reply (Annexure A-5A) to the impugned SCN (in 1st case) is concerned, he has almost adopted the reply (Annexure A-4) filed by him to the explanation dated 27.12.2010 (Annexure A-3), wherein he has unsuccessfully attempted to explain the delay and pleaded that the complainants did not give their statements to the IOs. As soon as they recorded their statements, the FIRs were registered. The explanation put forth by the applicant is not tenable and deserve to be ignored for following more than one reason.
23. At the first instance, Chapter XII of the Criminal Procedure Code (for short "Cr.PC") deals with the information to the incharge of police station and their powers to investigate cognizable cases. Moreover, as per the First Schedule Cr.PC, all the relevant offences relatable to the property, contained in Chapter XVII, are cognizable and non-bailable. Further, Section 154 of Cr.PC envisages, that every information relating to the commission of cognizable offence, if given orally to an officer in charge of a Police Station, shall be reduced to writing by him or under his direction, and be read over to the informant, and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer, in such form, as the State Government 12 OA No.4172/2012 and connected case may prescribe in this behalf. Section 156 empowers the police officer's to investigate cognizable offences.
24. Likewise, Section 157 Cr.PC posits that if, from information received or otherwise, an officer in charge of a police station, has reason to suspect the commission of an offence, which he is empowered under Section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, or shall depute one of his subordinate officers to proceed, to the spot, to investigate the facts and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender.
25. Moreover, Standing Order No. 145 dated 12.03.1980 issued with the approval of Commissioner of Police, Delhi, postulates that it is not necessary that the information must be given by the person aggrieved by the commission of the offence, himself. It is also not necessary that the information should be given by a person, having first hand information of the commission of the offence, so long as the person giving it undertakes to bear the responsibility for it. As soon as the information is given, it should be recorded without waiting for the appearance of the aggrieved party. It also follows that once the information given and the police machinery has been set in motion, there can be no withdrawal by the aggrieved party.
13 OA No.4172/2012 and
connected case
26. Similarly, Clause (II) of the Standing Order No.239 of Delhi Police Department postulates, that the SHO shall act as a guiding and controlling officer and has the power and responsibility to direct his subordinate to investigate the case. He is required to ensure proper performance of duty by the Duty Officer (DO), which is totally lacking on the part of the applicant in the present case.
27. A conjoint and meaningful reading of these provisions would reveal that SHO has the statutory responsibility to supervise and take effective steps to ensure the prompt registration of FIR in cognizable offences, which he has utterly failed to do so, in the present case, despite clear instructions, issued by the Additional Commissioner of Police, to immediately register FIR in cognizable cases, as soon as information is received of commission of such serious offences.
28. Sequelly, as indicated hereinabove, the applicant has not filed any reply to the impugned SCN (in 2nd case), despite its receipt and reminders. In other words, he has nothing to say/defend in this regard. Above all, non filing of reply to SCN, despite reminders by the applicant, itself amounts to misconduct, warranting Censure of conduct of a police officer.
29. Thus seen from any angle, the applicant has miserably failed to supervise the prompt registration of cognizable 14 OA No.4172/2012 and connected case offence of MVT cases and to prevent the commission of MVT cases and heinous offences of robbery and dacoity in his area. Indeed, it amounts to grave misconduct and dereliction in his duty. It was obligatory on his part to maintain law and order in his area and to properly instruct all his subordinate staff in this regard. He, being the SHO, is supposed to be more vigilant and to take effective steps to control & prevent motor vehicles theft and to avoid possibility of any serious offence of robbery, dacoity, murder or terrorist attack.
30. On the contrary, there is positive evidence on record that the theft of motor vehicles cases has increased culminating in the commission of robbery and dacoity in the area, during the tenure of applicant, as SHO of PS Kirti Nagar.
31. Therefore, once information was received and pointed DDRs were recorded in the Police Station, then it was the statutory and mandatory duty of the officer incharge of the Police Station (applicant). It was the duty of the applicant (SHO) to ensure that the FIR was lodged promptly and matter was investigated at the earliest. The applicant was not supposed to wait for the arrival of the complainant to lodge the report in a cognizable offence. The SHO of the Police Station need to be conversant of the fact that any crime committed within its jurisdiction is not a civil wrong but a wrong committed against the State and being the 15 OA No.4172/2012 and connected case representative of the State, it is his duty to handle and curb the same instantly than to wait for victims to wake up and raise their wail for justice. The reliance in this regard can be placed to the judgments of Tribunal in OA No.81/2013 titled as H.S.P. Singh Vs. Govt. of NCT and Others decided on 29.08.2016, OA Nos.4134/2013 titled as Inspector Vijendra Pal Vs. GNCT of Delhi and Others decided on 01.07.2015 and OA No. 3014/2013 tilted as Mahesh Chand Meena Vs. Commissioner of Police and Others decided on 26.08.2016. Thus the ratio of law laid down in the aforesaid judgments is mutatis mutandis applicable to the facts of case and is a complete answer to the problem in hand.
32. Moreover, the Hon'ble Supreme Court in case Lalita Kumari Vs. Government of Uttar Pradesh and Others (2014) 2 SCC 1 has ruled that the object sought to be achieved by registering the earliest information as FIR is, inter-alia, twofold: (i) that the criminal process is set in motion and is well documented from the very start and (ii) that the earliest information received in relation to the commission of a cognizable offence is recorded so that there cannot be any embellishment etc. The Cr.PC contemplates two kinds of FIR (i) duly signed FIR u/s 154(1) and (ii) the FIR lodged on any information u/s 157 (1) and both types of the information should be duly reported and sent to Magistrate.
16 OA No.4172/2012 and
connected case
33. Above all, in case the applicant had taken/recommended any action against IO, for delay in registration of FIR and proceeding to investigate the matter, he could be absolved of his liability, but when the applicant neither recommended any action nor himself register the FIR promptly, in that eventuality, the presumption is that he countenanced their action and accepted the inaction on their part. Indeed such acceptance, amounts to supervisory lapse. Hence, the applicant has miserably failed to check the theft of motor vehicles, and prevent the serious crime of robbery & dacoity in his area etc.
34. As regards the question of discrimination is concerned, in this regard the respondents have specifically pleaded in the reply, that the cases of SHOs mentioned by the applicant were decided considering their own lapses & explanation put forth in their reply and appropriate orders of warning etc. were passed. Moreover, it is now well settled principle of law, that each case has to be decided on its own peculiar facts of lapses & circumstances and the plea of discrimination is not at all available to the applicant. As mentioned above, the conduct of the applicant was Censured on the basis of his indicated misconduct.
35. Now, adverting to the last contention of the learned counsel, that the reply of the applicant in his first case was neither considered, nor DA and AA have passed the 17 OA No.4172/2012 and connected case impugned speaking order. In this regard, it may be added here that, all the relevant issues raised in his reply were duly considered and negated by the DA. The matter was again examined in the right perspective by the AA and the appeal filed by the applicant was rejected vide impugned order dated 10/18.08.2011 (Annexure A-2). The operative part of which (in 1st case) is in the following manner:-
"I have gone through the appeal and other relevant records. I have also heard the appellant in person on 05.08.2011. During personal hearing, he reiterated the same grounds taken in his appeal and had nothing to say afresh. I find no merit in the pleas taken by him in his appeal as non-registration of M.V. theft cases by the IOs only shows that the SHO did not properly supervise their working. Instructions are clear to immediately register the case when information with regard to the commission of cognizable offence are received in the police station. Non-registration and delay in registering cases is a serious lapse. In some of the cases, the delay is rather too much and inexcusably long. The applicant has only tried to shift his responsibility on the shoulders of IOs by stating that the PCR Calls relating to the thefts of vehicles were kept pending by the IOs. But, he cannot absolve himself of his duties as SHO, and being the chief of Police Station it was his responsibility to ensure proper supervision over the working of staff under his control, and ensure that the instructions issued by the senior officers/PHQ regarding Motor Vehicle cases were being complied properly. The punishment awarded by the Disciplinary Authority is upheld as it is neither unjust nor excessive and the appeal is rejected".
The operative part of the impugned order dated 11.05.2011 (Annexure A-2) (in 2nd case) reads as under:-
"I am not convinced with his pleas. He failed to take effective measures to prevent the crime in the area of PS Kirti Nagar and action against robbers and auto lifters in the area. SHO is the Chief Investigating Officer, and has to look after the law and order in the jurisdiction of his police station as well as ensure effective supervision over the staff posted there. There was 65.05% increase in the MV theft cases in the area of PS Kirti Nagar. Working out percentage of these cases was also almost nil as only 2 out of 81 cases were worked out. This shows that there was no monitoring of the cases by the appellant. The appellant had failed to make sincere efforts in regard to prevention of crime. The action against robbers/snatchers and auto-lifters was not up to the mark. His plea that his colleague Inspectors were not cooperating him is not tenable as he was the SHO and overall responsible for the police station. The appellant was fully responsible as the SHO for crime control and detection, and cannot be absolved of his responsibility. Being SHO/Kirti Nagar he failed in his duty in ensuring effective action against criminals, and prevention of crime. As such the appellant has been found negligent for which the punishment awarded by the Disciplinary Authority is not excessive and the same is maintained. The appeal is rejected".18 OA No.4172/2012 and
connected case
36. Therefore, we do not find any illegality, irregularity or any perversity in the impugned orders. As such, no interference is warranted in the impugned orders by this Tribunal in the obtaining circumstances of the case, in view of law laid down by the Hon'ble Apex Court in cases of B.C. Chaturvedi Vs. U.O.I. & Others AIR 1996 SC 484 and K.L. Shinde v. State of Mysore, (1976) 3 SCC 76.
37. No other point, worth consideration, has either been urged or pressed by the learned counsel for the parties.
38. In the light of the aforesaid reason, we find that there is no merit, and the instant OA deserves to be and is hereby dismissed, as such. However, parties are left to bear their own costs.
Let a copy of this order be placed in the connected file.
(P.K. BASU) (JUSTICE M.S. SULLAR)
MEMBER (A) MEMBER (J)
07.09.2016
Rakesh