Central Administrative Tribunal - Delhi
G.C. Dwivedi vs Union Of India Through on 20 August, 2014
Central Administrative Tribunal Principal Bench OA No.2146/2013 Order Reserved on: 04.04.2014 Order Pronounced on: 20.08.2014 Honble Mr. Justice Syed Rafat Alam, Chairman Honble Dr. B.K. Sinha, Member (A) G.C. Dwivedi, S/o Late Shri T.N. Dwivedi, Aged about 57 years, R/o A-2 Type-V, New Police Lines,Kingsway Camp, New Delhi-110009 -Applicant (By Advocate: Shri A.K. Behera) -V E R S U S- Union of India through: 1. The Secretary, Ministry of Home Affairs, Government of India, North Block, New Delhi-110001 -Respondent (By Advocate: Shri R.N. Singh) ORDER Dr. B.K. Sinha, Member (A):
The instant Original Application under Section 19 of the Administrative Tribunals Act, 1985 has been filed against the Memorandum dated 14.3.2013 initiating a major penalty proceeding under Rule 8 of the All India Services (Discipline & Appeal) Rules, 1969 charging the applicant with failure to maintain absolute integrity, devotion to duty and acting in a manner unbecoming of a Government Servant, thereby violating the provisions of Rule 3(i) of All India Services (Conduct) Rules, 1968.
2. The applicant has prayed for the following reliefs:-
(i) Call for the records of this case;
(ii) Quash and set aside the Memorandum dated 14.03.2013 at Annexure A-1;
(iii) Quash and set aside the orders dated 21.05.2013 at Annexure A-2 and the Memorandum dated 20.06.2013 at Annexure A-3.
(iv) Direct the respondents to give all consequential benefits to the applicant;
(v) Direct the respondents to pay the cost of ligation to the applicant; and
(vi) Pass any other order or direction which this Honble Tribunal thinks fit and proper in the facts and circumstances of the case.
3. The facts of the case, in very brief, are that the applicant, an IPS Officer of AGMUT cadre, was posted as Addl. Commissioner of Police, Police Control Room (PCR) in Delhi from 3.12.2010 to 31.10.2012. The applicant was relieved from his assignment w.e.f. 31.10.2012 and transferred as Addl. Commissioner of Police, Anti-Corruption Branch, Delhi. The applicant assumed charge of his new assignment as Addl. Commissioner of Police, Anti-Corruption Branch, Delhi on 01.11.2012. After about 1= months of relinquishment of charge by the applicant as Addl. Commissioner of Police, Police Control Room, a sensational gang rape was committed in the night of 16.12.2012 which attracted wide publicity and jarred the conscience of the nation. The applicant received the memorandum dated 14.03.2012 charging him with failure to discharge his supervisory duties after the reported rape incident in the night of 16.12.2012, as the control room and PCR vans took undue length of time to respond to the emergency call about the reported incident of gang rape and that in their report after the incident, an attempt was made by the Control Room to show wrong time of receipt of distress call and the dispatch of the PCR van, as also the arrival of the PCR van at the hospital. The defence of the applicant is that while he had been posted as Addl. Commissioner of Police, Police Control Room and PCR vans, he had taken a number of measures to tone up the administration of the PCR. He had brought about a number of reforms in the working of the PCR, which was thoroughly assessed and in recognition of which, he was awarded the Presidents Police Medal for Meritorious Service vide letter dated 25.01.2013. As regards the charge relating to late arrival of the PCR van and interpolation of records, the applicant contends that he could not have been charged with this alleged act of dereliction of duty as he had relinquished the charge of the PCR more than 1= months earlier to the alleged incident.
4. The respondents have filed a counter affidavit rebutting the points raised in the OA. It has been submitted therein that it is beyond the jurisdiction of this Tribunal to determine whether there exists sufficient and cogent material to sustain the articles of charge. These are to be established by the evidence adduced during the course of the inquiry. For this, the respondents have relied upon the cases of Union of India & Ors. Vs. Swathi S.Patil in Civil Appeal No.3881/2007 (arising out of SLP(C) No.17417 of 2006), Union of India & Anr. Vs. Ashok Kacker, reported in 1995 Supp(1) SCC 180, Union of India Vs. Upender Singh, reported in JT 1994(1) SC 658, Union of India Vs. Kuni Setty Satyanarayana, reported in 2007(1) SCT 452, State of Punjab & Ors. Vs. Ajit Singh, reported in 1997(11) SCC 368 and DIG of Police Vs. K.Swaminathan, reported in 1996(11) SCC 498. The respondents have further alleged that the applicant had been quite lax in monitoring/supervision system for the PCR Staff during the course of his posting and while he had issued show cause notices to the Control Room Staff during his tenure, none was punished. It is submitted that had the applicant brought about improvement in the working of the PCR and managed its functioning more responsibly, the incident crises reaction time would have been much faster even after his relinquishing the office.
5. We have carefully examined the pleadings and such documents as have been brought on record. We have also patiently listened to the oral submissions made by the rival parties, by and large supporting their respective pleadings. On the basis of the above, the only issue to be decided is as to whether the charges are non est without having resorted to an assessment of the evidence supporting the charges.
6. First we take up the issue of jurisdiction. No doubt, the general law, as has been cited in respect of Swathi S.Patils case (supra) and in a number of other decisions, which has been laid down by the Honble Supreme Court is that the proper place where the question whether there exists sufficient and cogent material to sustain the articles of charge, is to be decided by the inquiry officer on the basis of the material adduced before him. However, the Honble Supreme Court, in the case of S.R. Tewari Vs. Union Of India & Anr. Vs. R.K. Singh & Anr, Civil Appeal No.4715-4716/2013 (arising out of SLP(C) No.22263-22264/2012), held that there may arise situations, for instance, if the charge is ridiculous or non est or suffers from malafide, the Courts have reasons to interfere. Even in the case of Union of India Vs. Upender Singh, 1994(3) SCC 357, the Honble Supreme Court held that there is a scope for interference by the courts or the tribunals prior to the completion of the inquiry where certain set of circumstances, including the charges framed do not point out any misconduct or irregularity or contrary to law or have been motivated by mala fide. For the sake of greater clarity, relevant paragraphs are being extracted as below:-
6. In the case of charges framed in a disciplinary inquiry the tribunal or court can interfere only if on the charges framed (read with imputation or particulars of the charges, if any) no misconduct or other irregularity alleged can be said to have been made out or the charges framed are contrary to any law. At this stage, the tribunal has no jurisdiction to go into the correctness or truth of the charges. The tribunal cannot take over the functions of the disciplinary authority. The truth or otherwise of the charges is a matter for the disciplinary authority to go into. Indeed, even after the conclusion of the disciplinary proceedings, if the matter comes to court or tribunal, they have no jurisdiction to look into the truth of the charges or into the correctness of the findings recorded by the disciplinary authority or the appellate authority as the case may be. The function of the court/tribunal is one of judicial review, the parameters of which are repeatedly laid down by this Court. It would be sufficient to quote the decision in H.B. Gandhi, Excise and Taxation Officer-cum- Assessing Authority, Kamal v. Gopi Nath & Sons5. The Bench comprising M.N. Venkatachaliah, J. (as he then was) and A.M. Ahmadi, J., affirmed the principle thus : (SCC p. 317, para 8) "Judicial review, it is trite, is not directed against the decision but is confined to the decision-making process. Judicial review cannot extend to the examination of the correctness or reasonableness of a decision as a matter of fact. The purpose of judicial review is to ensure that the individual receives fair treatment and not to ensure that the authority after according fair treatment reaches, on a matter which it is authorized by law to decide, a conclusion which is correct in the eyes of the Court. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. It will be erroneous to think that the Court sits in judgment not only on the correctness of the decision making process but also on the correctness of the decision itself."
7. Now, if a court cannot interfere with the truth or correctness of the charges even in a proceeding against the final order, it is ununderstandable how can that be done by the tribunal at the stage of framing of charges? In this case, the Tribunal has held that the charges are not sustainable (the finding that no culpability is alleged and no corrupt motive attributed), not on the basis of the articles of charges and the statement of imputations but 5 1992 Supp (2) SCC 312 363 mainly on the basis of the material produced by the respondent before it, as we shall presently indicate. There have been in a number of cases before the Tribunal where charges have been quashed when they have been found untenable even on preliminary inquiry or being non est in character or being against some provisions of law or even being attended by inordinate delay. We would like to cite only two decisions, namely, S.R. Tiwary Vs. UOI Vs. RK Singh (supra) and Upender Singh (supra) where charges have been quashed for the reasons enumerated as above.
7. Here, the contention of the applicant is that when he had relinquished the charge 1= month earlier, he could not possibly have been charged with sending PCR vans or making subsequent interpolation of records at the time of occurrence of the incident in 16.12.2013. It is not the charge against the applicant that his inefficiency or lax supervision of the PCR during his tenure as Addl. C.P., PCR, resulted in delay in arrival of the PCR van at the site of the incident, and, therefore, the charges are non est.
8. Now we take up the main issue as to whether the charges are non est. The statement of imputation of misconduct in support of each article of charge is enclosed as Annexure-II to the impugned memorandum dated 14.3.2013, which reads as under:-
That Shri G.C. Dwivedi, IPS, while functioning as Addl. Commissioner of Police (PCR) failed in supervisory duty as much as following the gang rape in bus No.DLIPC-0149 in the night of 16th December, 2012. The Control Room and PCR vans took unduly long time to respond to the emergency call.
That as per service providers CDR of mobile No.9717890175 from 15.12.2012 to 17.12.2012 the first call to Control Room for help was made by the Highway Patrol of Delhi-Gurgaon Road at 10.14 PM and not at 10.21 PM as indicated in the Police report dated 05.01.2013. Till 10.25 PM, no PCR Van could reach the site and therefore, the Highway Patrol again called the PCR control Room. The PCR Control Room directed Z-54 at 10.24 PM to reach spot which reached at 10.29 PM. Meanwhile, the Highway Patrol looked for another PCR van E-47 and informed them about the incident which reached the spot faster at 10.27 PM.
That it is clearly established that the first PCR van that reached the spot was after 13 minutes of the first call being made. Thus there has been serious lapses at the Control Room level where they took unduly longtime to process the call made their own entries, choose the priority and finally direct PCR van Z-54 at 10.24 PM. Valuable time of 10 minutes were consumed in the process.
That the PCR van remained on the spot at least for 12 mntues and finally left the spot for Safdarjung Hospital at 10.39 PM.
That there has been tampering in the timings that show when the PCR actually reached at Safdarjung Hospital. The Police report dated 5th January, 2013 reveals that the PCR reached the hospital at 10.55 PM.
That under no stretch of imagination police could have reached Safdarjung Hospital covering a distance of 11.5 KM in 16 minutes. Thus, the time of arrival could be anywhere between after 11.00 PM to 11.30 PM.
That the PCR van staff did not provide clothes and they wasted 12 minutes on the spot.
That further, the Delhi Police version about receipt of information, about arrival of PCR Van on the spot, departure of PCR Van from the spot to the Hospital and the Log Book entries of the van and Safdarjung Police. Out Post entries are inconsistent in terms of timings regarding departure and arrival of the vehicles.
This implies that the sequence of the event and steps taken by Delhi Police does not match thereby raising a serious question about wrong information being given.
That in their report after incident an attempt was made by the Control Room to show wrong time of receipt of distress and the dispatch of the PCR van, as also the arrival of the PCR van at the hospital. Giving of wrong information to mislead the Government is a serious lapse.
That the log book of the PCR van Zebra 54 vehicle is found to have merely mentioned the journey from mahipalpur flyover to Safdarjang Hospital. It does not specify the purpose, journey detail, time and the distance covered as per the PCR form-I. That the bed sheet was provided to the girl by a passerby. The Highway patrol staff gave sweater to the girl and a shirt to the boy. PCR van staff did not provide any clothes to victims.
That the female victim, who was in unconscious condition, was placed on the van by the staff of the Highway Patrol and not by the staff of the PCR van.
That Shri G.C.Dwivedi has grossly failed to supervise the day-to-day functions of the Police Control Room, PCR Vans and his subordinate officers. Shri G.C. Dwivedi has been in charge of the PCR Control Room since December, 2010. He has not undertaken the task of supervising the Control Room in a professional manner. He has not made efforts to keep the Control Room and PCR vans operations efficient upto the desired level with the result that the response of the officials in the Control Room and PCR vans was below par and not professional and efficient. In the year 2012, as many as 72 explanations were issued to his staff and action was taken against None.
That thus, by his afore-mentioned acts of omission and commission, Shri G.C. Diwevdi, IPS failed to maintain absolute integrity devotion to duty and acted in a manner unbecoming of a Govt. servant thereby violating the provisions of Rule 3(i) of All India Services (Conduct) Rules, 1968. The statement of articles of charge is enclosed to the memorandum as Annexure-I, which reads as under:-
That Shri G.C. Dwivedi, IPS, while functioning as Addl. Commissioner of Police (PCR) failed in supervisory duty in as much as following the gang rape of a girl in bus No.DLIPC-0149 in the night of 16th December, 2012, the Control Room and PCR vans took an undue length of time to respond to the emergency call. Had Shri G.C. Dwivedi, IPS taken appropriate supervisory steps earlier the lapses would not have occurred leading to delayed response jeopardizing the life of rape victim.
That in their report after incident an attempt was made by the Control Room to show wrong time of receipt of distress call and the dispatch of the PCR van, as also the arrival of the PCR van at the hospital. Giving of wrong information to mislead the Government is a serious lapse.
Thus, by his afore-mentioned act, Shri G.C. Dwivedi, IPS failed to maintain absolute integrity, devotion to duty and acted in a manner unbecoming of a Govt. servant thereby violating the provisions of Rule 3(1) of All India Services (Conduct) Rules, 1968.
9. The applicant has been charged with delay in processing of the call making entry and dispatching of the vehicles, not providing enough support, including bed sheet and clothes to the victim which otherwise was provided by the passersby and not by other members of the staff, and failure of the applicant to supervise day-to-day functioning of the Police Control Room and his subordinate officers. This leads us to a natural conclusion that while framing charges, the respondents had not taken into account the fact that the applicant had already relinquished the charge of PCR one and a half month earlier, instead the charges appeared to have been framed under the impression that he was continuing as Addl. Commissioner of Police, Police Control and PCR vans. In any case, the charges of late dispatching of PCR vans and interpolation of records are period specific, which are not relevant to the case of the applicant.
10. We also feel that in the counter affidavit, the respondents have tried to cover up the situation by alleging that there were lackadaisical working conditions and lack of discipline, which accounted for the poor response and interpolation in documents to cover up the lapses. This implies that there was no monitoring/supervision evolved by the applicant during his tenure as Addl. Commissioner of Police, Police Control and PCR vans nor was proper training imparted, leading to late responses to the situation as well as failure to assess the gravity of the call. However, we find that the applicant has also been awarded the Presidents Police Medal for Meritorious Service during the period of his posting as Addl. Commissioner of Police, Police Control and PCR vans. The applicant further contends that his efficiency and promptness in the working of the PCR were recognized by a person no less than Shri P.Chidambaram, the then Home Minister of the country. Moreover, we feel that had the intention of the respondents while framing the Articles of Charges been that he should be punished for non-performance, non imparting proper training and failure to design a proper system, then charges would have been differently framed alleging all these facts. The wordings and structure of charges lead to invariable conclusion that this was not the intention. To the contrary, it appears that the charges have been framed without proper verification of facts and application of mind. Therefore, the charges are totally non est and have been prepared under the impression that the applicant was continuing as Addl. Commissioner of Police, Police Control Room. Therefore, there is no escape from the fact that the charges cannot sustain in their present form.
11. However, we take cognizance of the position that the applicant had been in-charge of Police Control Room for a fairly long period of time. The respondents are within their rights to proceed against the applicant for the acts of omission and commission, if any, incurred during this period. In the case of State of Punjab Vs. Chamanlal Goyal, (1995) 2 SCC 570, the position was similar to one in the present case. The respondent-writ petitioner was the Superintendent of Nabha High Security Jail in the year 1986. He handed over charge of his office on December 26, 1986 on transfer. On the night intervening 1st/2nd January, 1987, certain inmates, said to be terrorists, made an attempt to escape, in which two of the inmates attempting to escape and one jail official died in the shootout. Six terrorists made good their escape. The Inspector General of Prisons immediately inspected the prison and made a report to the Government on January 9, 1987. He reported inter alia that the said incident was the cumulative result of lax administration, indiscipline and lack of control over the prisoners. He reported further that the respondent followed the policy of appeasement towards the extremists. He yielded to each and every illegal demand of the extremists. As a result, detenue assumed the leadership of the prison population and dictated terms to the administration so much so that there was a total breakdown of the classification of the inmates in the different wards of the jail. One of the facts in favour of the respondent which weighed with the Apex court while deciding the matter, as enumerated in para 10 of the judgment, reads as under:-
(a) That he was transferred from the post of Superintendent of Nabha jail and had given charge of the post about six days prior to the incident. While the incident took place on the night intervening 1st/2nd of January, 1987, the respondent had relinquished the charge of the said office on December 26, 1986. He was not there at the time of incident. The Apex Court, however, noted that the charges leveled against the respondent were grave in nature inasmuch as he was not only lax in discharge of duties, but he also acceded to every demand of the inmates in violation of the prison rules. Therefore, applying a balancing process, it was held that it would be more appropriate and in the interest of justice that the inquiry, which had proceeded to a large extent, be allowed to be completed despite there being a delay of more than five years in serving the memo of charges. It was accordingly held that quashing of charges by the High Court was not warranted in the circumstances of the case. However, in the instant case, a perusal of the statement of articles of charge and also statement of imputation of misconduct in support of the articles of charge, would show that a vague allegation is made that failure on the part of the applicant in supervising the PCR during his tenure as Addl. CP, PCR, is the reason for the delay in arrival of the PCR in response to the emergency call. It is well settled that the charge must be specific and clear and should not suffer from the vice of vagueness, which may be a good ground to quash the same. In the instant case, having carefully examined the articles of charge and also the statement of imputations in support of the articles of charge, we have no hesitation in holding that the charge is not specific, and as such, it cannot sustain in the present form. Reference in this regard may be made to Union of India & Ors Vs. Gyan Chand Chattar, JT 2009(8) SC 473.
12. In the instant case, we take full note of the fact that December 16, 2013 rape case in Delhi was one incident which had shocked the conscience of the Nation. The question is to be naturally asked as to why and how this incident and the several acts of omission and commission had taken place. While it does appear from the foregoing discussion that the charges are not sustainable in their present form, this does not distract from the cause of the administration to take action in the instant case. Therefore, we dispose of the OA with the following directives:-
(i) The memorandum dated 14.3.2013 is quashed; and
(ii) The respondents are, however, at liberty to draw up a fresh charge-sheet for the acts of omission and commission incurred during the tenure of the applicant as in-charge of PCR and proceed accordingly.
There shall be no order as to costs.
(Dr. B.K. Sinha) (Syed Rafat Alam) Member (A) Chairman /lg/