Central Administrative Tribunal - Kolkata
L S Yadav vs Police on 29 January, 2019
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CENTRAL ADMINISTRATIVE sTRIBUNAL
CALCUTTA BENCH
(cJfLcutr. S. I TT£fY 0\ AT PofiT Bl/UR)
O.A. NO.351/415/2017 !
Coram Hon'ble Mrs. Bidisha Banerjee, Judicial Member
HoiVble Dr.(Ms.) Nandita Chatterjee, Administrative Member
Shri L.S. Vadav
S/o Late D.N.S. Yadav
Presently posted at Reserve Inspector,
\ . * police L^p;e;#p:rt Blair
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Respondents.
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For the applicant : Mr. G.B. Kumar, counsel
For the respondents : Mr. S.K. Mandal, counsel
Heard on : 18.12.2018 Order on : Zfy/ljMtJ
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ORDER
Bidisha Baneriee. Judicial Member This application has been preferred in order to seek the following reliefs:-
"8. A. An order be passed setting aside the office order book No. 5639 dated 17.07.2015 passed by the respondent No. 3 i.e. disciplinary authority whereby the disciplinary authority awarded punishment of withholding of one increment with cumulative effect for grave misconduct of the applicant and also treated the period of suspension of the applicant as not spent on i duty for all intend and purposes and during the suspension period the remaining portion of the pay and allowances of the applicant was forfeited to the government and.the.grderWd'1977 dated 15.05.2016 passed by the respondent No. 2 i.e. the appellate .authority whereby affirm the order ■ i-
passed by the disciplinary authority.
\ B. An order be passea directing the respondent No. 2%tp 'immediately release the incre.men&y/hfch Wasywithhofd by'the office^ofthe 'respondent No. 3 pertaining to fmpUgned brderi passeci by the respondent No. 2 & 3 \ r and to fix. the pay of theappljcdptb^cirdlnglf: V i $■ c. An order be passed'dipecting the- respondenpauthorities to tfpnsmit the original recordsrOfllhb^gse befdrefthis^Honfble Court, .so: that after perusing the same conscibnaiile f^iCeynayPe/eijdered to the-app/idant A J i( -j, V. 1 • ■ • r / i \ /* ?
D. Any other relief or Reliefs brder dr orders, direction or directions as :
your Honor deem fit andproper." i v
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2. The case of the applicant that emerge from;the,'pieadings of the^parties is ■«
--- t that a memo dated 14.11.2014 was-issued^to initiate^discijilinary proceedings
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the following indictments:-
"ARTICLE-1 That Inspr. L.5. Yadav (now U/S), the then SHO, P.S Pahargaon f handled the complaint of J. Sasi Kumar dated 02/09/2014 and the complaint of N. Ramaiah dated 03/09/2014 in an irresponsible manner and instead of attending the case himself or deputing an officer, he deputed a Head Constable to attend the complaint. He did not bother to visit the place of occurrence on the date of the incident ie, 02/09/2014.
That such negligent attitude on part of Inspr. LS Yadva, the then SHO Pahargaon, constitutes grave misconduct and is in contravention of the mandatory provisions under Rules 8.45, 8.46 and /....--
/ // 3 ■■ / <* 8.47 of A & N Police Manual, 1963 rendering, him liable for punishment under Rule 9.3 of the said manual.
y/ ARTICLE-II i That Inspr. L.S Yadav (now U/S), the then SHO, P.S Pahargaon failed to record the G.D entry in respect of the incident even after return ofHC/118 Siva Kumar to PS. The failure to record the details of incident in the General Diary is a serious misconduct and points towards a deliberate omission on the part of SHO.
That such act on part of Inspr. L.S Yadav, the then SHO Pahargaon, constitutes grave misconduct and is in contravention of ; the mandatory provisions under Rules 8.45, 8.46, 8.47 and 12.38 (a) of A 8i N Police Manual, 1963 rendering him liable for punishment under Rule 9.3 of the said Manual.
ARTICLE-III.
„ That the FIR No.. .172/14 dated 03/09/2014 of P.S Pahargaon was registered with complete disregard to the facts and without any efforts whatsoever to. ascertain, the veracity of the complaint by Inspr. L.S Yadav (0/S). No efforts were made to find out the tenancy or ' possession of the^olleged, premises which is a crucial fact in any case . of trespass. , T -
Thdfrspch-v'tiegliQeht'attitude on-part of Inspr. L.S Yadav, the ./then SHOri/Pahargaoh,j constitutes grave, misconduct and, is in , coptravention^ofthe nranildtory provisions under Rules 8.45, 8/46 and ; • ■ 8.47 of A Pdlice) Manual, 1963 rendering him liable for punishment-undeftiufe 9.3 of the,said Manual.
ARTICLE-IV That on the complaint ofShri N. Ramaiah, who is an accused in FIR No. 172/14 of P.S Pahargaon, a NCFIR No. 451/14 .was registered at P.S Pahargaon on 03/09/2014 and even after registration of a Criminal Case, Inspr. L.S Yadav (U/S), the then SHO Pahargaon tried to settle the issue, without following the due process of law.
That such negligent attitude on the part of Inspr. L.S Yadav, the then SHO Pahargaon, constitutes grave misconduct and is in contravention of the mandatory provisions under Rules 8.45, 8.46 and 8.47 of A & N Police Manual, 1963 rendering him liable for punishment under Rule 9.3 of the said Manual.
ARTICLE-V That Inspr. L.S Yadav (U/S), the then SHO PS Pahargaon in connivance with SI R.K Mazumder (U/S), made a false GD Entry bearing No. 37 dated 24/09/2014 and later destroyed the evidences of arrests memos and bail bonds.
/ 4 That such act of making false GD entry and destroying evidences on the part of Inspr. LS Yadov (U/S), the then SHO Pahargaon in connivance with SI R.K Mazumder (U/S), the then 1.0 of the case constitutes grave misconduct and Is In contravention of the mandatory provisions under Rules 8.45, 8.46, 8.47, 12.38 (c) and 12.38(d) of A 8i N Police Manual, 1963 rendering them liable for punishment under Rule 9.3 of the said Manual."
3. In regard to the allegations under Articles I & II, the applicant contended that at no point of time he ever deputed Head Constable 519, Siva Kumar at the i place of occurrence, rather he was on duty near the alleged place of occurrence and as such there was no question'of making any general diary entry .in the police station. Charge,under 'Article III has been-denied by the applicant, since on the i ' , x basis of complaint dated^:02.09.-2014 made by Sasi Kumar which disclosed a ^ \ \ \ ' ' ■ * V f, 'v \ V ;> / / ' ^ ■' \ cognizable offence in terms oftthe'prOvisjpns.of Cr.PC 1973 , the applitant'was left
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4. In regard to Artiele^lV, .tKe.-ap'plicant has declined to accept the charge < * / *. ■* .
since he initiated an NCFIR"against Sasi/Kumar on.03.09.2014 and subsequently •»* jt made a chalan against Sasi Kumar on the basis of.a complaint against N: Ramaiah and, therefore, acted as~per la'w-without any settlement. Article-V of the charge has been alleged to be^without substance as after the anticipatory bell Ramaiah appeared before police station at Pahargaon and as per provision of the Cr.PG 1973, he was arrested and released on bail which was recorded in the general diaty entry, Pahargaon Police Station. Further, the applicant has alleged that r.
Ramaiah deposed differently on each of three Articles and each of such depositions contradicts each other. In one statement he stated that he was threatened by Sasi Kumar whereas in two other statements he stated that he was not present in the alleged place of occurrence and informed by one Marimuthu.
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i Therefore on the basis of such contradictory statements no conclusion could be i .7 i / arrived at. Moreso, due to the fact that Head Constable Siva Kumar, Sasi Kumar and Marimuthu, persons who were present at the time of alleged occurrence, were not examined and, therefore, on the basis of mere surmises and conjectures the Enquiry Officer concluded his enquiry report. The Disciplinary Authority without considering the defence proof submitted by the applicant and with total non application of mind, passed the impugned order dated 17.07.2015 holding that all the charges against the applicant sfood true and/therefore, would award L- 5 i.
the punishment of withholding of one future increment ^with cumulative effect i i treating the suspension peripd'as 'not spent omduty' for all intents and purposes «. * % i * ■- ^ * ,> and thereby forfeiting the balance^oftrie/pay and allowances, fhe-applicant has I t '•-r. Si !' J .t- 'r'' . " I • • 'v 7';
further alleged that the Appellate.'Authority .vide Hts order dated 15.05.2016 ►
-i •-* mechanically affirmed the order.rpassed: by5-th^';Disciplihary Authority without . • '1 ^ ■•■i \ considering the contentions raised,;in the: appeal, v
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5. Since the allegations;were fac:tual'iTr-hature,a'hci nonprocedural lapse was either pleaded or argued in regard to conduct of th'e-discipfinary*proce£dings, we
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, 'v' /■ gave our anxious consideration in regard to the conclusions arrived at by the authorities, while issuing their-penalty orders and ap'pellateOrders.
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6. We note that in his reply to the Enquiry Officer's report the applicant contended.as follows:-
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• Head Constable Siva Kumar was available near the place of occurrence and was, therefore, directed to inform the concerned persons to reach Police Station. Further, the said HC/519 Siva Kumar was not cited PW in the departmental enquiry and therefore did not get Opportunity to cross examine him. There is no merit in contention since it is proved from the statement of PW-4, Smti. K. Vasani adduced during the regular departmental enquiry.> 6
/• • No police personnel namely HC/118 Shiva Kumar was posted at PS L:7 // Pqhargaon. The same is devoid of merit as it was a mere typographical error. The belt number of HC Shiva Kumar has been wrongly typed as HC/118 instead of HC/519. The fact that HC/519 Siva Kumar of PS Pahargaon was deputed by Inspector LS. Yadov, {CO-1}, the then SHO, has been conclusively proved during the enquiry.
• HC/519 Shiva Kumar who was deputed for duties in the area of PS Pahargaon was directed to inform the parties to reach PS Pahargaon along with relevant documents in support of their claims. Shri J. Sasi * Kumar submitted all documents in support of his claim white Shri Ramaiah, accompanied by Shri Surendran and Shri Ramaiah's son did not produce, any documents in support of his claim. A case was accordingly registered against Shri Ramaiah. It was later, during the preliminary enquiry that Shri Ramaiah produced the documents in support of his claim.
. •» There is-no merit in this contention of the-Inspector LS. Yadav (CO-1). The fact on record ikhthathe had^registered'd criminal case against Shri Ramaiah in haste without 'ascertaining therfacts of the matter especially a case involving property.dispute:
• There is no evidence:'eith%:;bfdl -or documentary to substantiate the charge of amicabie. settle'mehtYatte.mpted by - him (inspr. L.S. Yadav). More than sufficient evidence das come on record against the charged .officer to prove that7he tried to settle the. case in the Police Station and also sent a ChallaffM/s 1Q7/116(3}/150/US Cr. PC vide Challan No. 158/14 dated 65/09/2di4hp:tS:BM.-Pbrt Blair, stating the possession of the shop as disputed., • The allegation in Article -V/ that be connived with Sub-Inspector R.K. Mazumdar (CO-2) and'mode a.false GD Entry No. 37 and later destroyed the same is not true as PW-5 PC Amritesh Vijay has affirmed during departmental enquiry that there is no signature of SHO on the bail bond and that S.l R.K. Mazumdar (CO-2) did not give any directions to him while he was writing the GD Entry.
PW-S PC Amritesh Vijay has deposed during the examination-in-chief/re examination by the Presenting Officer, that GD Entry No. 37 dated 24/09/2014 was made by him on the directions of Inspector L.S. Yadav (CO-1) who was present in the PS Pahargaon at the relevant time.
Sub-Inspector R.K. Mazumdar (CO-2), in his written submission (reply), averred that during cross examination in DE proceeding Shri N. Ramaiah clearly stated that on 24/09/2014, at the relevant time, he was not present in the PS. Further, he pointed out that PW-5 Amritesh Vijay also / f i. 7 adduced in the DE proceeding that Sub-Inspector R.K. Mazumdar {CO-2) did /, not give any direction while he recorded the G.D entry regarding the release of the accused persons.
The contention of CO-2, SI R.K. Mazumdar is devoid of any merit. During the cross examination by the Defence Assistant, Shri N Ramaiah has asserted that while he was arrested in PS on 24/09/2014, the policeman who was present in the PS, PC Amritesh Vijay spoke to Sub-Inspector R.K. Mazumar (CO-2) over telephone while the arrest was being effected."
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7. The said written reply was dealt with by the Disciplinary Authority in the following manner:- i ^ "I find no reasons or matffi'al to disagree-with the findings of the Inquiry Officer. Furthermoredthe^charged officer Inspector L.S. Yadov (CO-1), the then SHO Pahargadn and "Sub-Inspector R.K.CMazumdaf (CO-2) cannot absolvejheir responlibiltty\qs\supervisory officers and investigating officer for the proven misconduct" ' ■ft. • Therefore/we find no reason tb-hoid that the Disciplinary Authority passed A ' / i his order.without applicatibtfbf mind and without considering the defence of the ' "A f f N. applicant.
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8. The Appellate'Authority'-while dealing with the-appeal has* recorded as V under:-
"WHEREAS, the main contentions of Appellant.No. 1 (Inspector L.S. .Yadov) herein that the order passed by the Disciplinary Authority is bad , both in. law and facts. The Disciplinary Authority failed to consider that as per the deposition of GD Writer as well as the documents adduced, the ■question of arrest and release of Shri Ramaiah did not arise, the Disciplinary Authority passed the order of penalty in a capricious manner. Enquiry Officer conducted the DE proceeding as per his whim and choice giving total go by the provisions of law and laid down procedure and such lapses immersed to violation of Natural Justice and the prosecution failed to bring the charge against the appellant by the oral or documentary evidence adduced during the DE proceeding. Enquiry Officer did not summon the Preliminary Enquiry Officer though he was one of the listed witnesses. Due to non-appearance of preliminary enquiry officer in the regular inquiry, the appellant could not cross examine him. That Article-ll of the Memorandum / 8 of charges is based on HC/519 Siva Kumar but he was not made as listed PW and without his deposition the Enquiry Officer submitted his report.
Such contentions of Appellant No. 1, (Inspector- L$. Yadov) hold no merit. During examination-in-chief the GD Writer (PW) had deposed that the GO entry was made by him on the direction of the oppe/font. The fact on record is that the appellant registered a criminal case against Shri Ramaiah in haste without ascertaining the facts of the matter especially a case involving property dispute. Sufficient evidence came on record against the appellant to prove that the appellant tried to settle the case in the Police station and also sent a challan to SDM, Port Blair, stating the possession of the shop as disputed. Further, regarding the issue of Enquiry Officer did not call, the Preliminary Enquiry Officer during DE proceedings, he should have demanded for the same, but as per record, it was not demanded/raised by the appellant during .Deoarfmebtah Enquiry. Further, during the Departmental Enquiry it has been conclusively .proved that the appellant had misused his official position by making -false' entry Jn the GD and arrested the complainant ShrirRamaiah and made^&R against him with completed disregard to-fhe factsond without any efforts'to ascertain the veracity of the complainantond issued arrest-memo and thereafter released the complaint. Shri Rambiaiiioh;bhihbdnd£The.;arrest memo-and bail bond were later destroyed.'It-js^yrovedcffom the statement of-.PW-4'Smti. K. Vasani who deposed^thai^lfC/SlS'Siva' Ku'mar^attended^ihe soot of !■ incident." r>
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In view of the extracts supra/ it^cannot be.,gainsaid that the Appellate
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Authority considered the factsJ'and drcarrtstances^of ... * ,the/case '-1. .•1 but mechanically / * affirmed the order passed by the Disciplinary Authority.
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9. In B.C. Chaturvedl v. Union of lndia/& Others^.(l995): 6 SCC 749, the Hon'ble Apex Court on the scope of-judicial-review has helcl as under:
"judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the copclusion which the authority reaches is necessarily correct in the eye of the Court. When an inquiry is conducted on charges of misconduct by a public servant the Court/ Tribunal is concerned to determine whether the inquiry was held by a Competent Officer or whether the inquiry was held by a Competent Officer or whether Rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical Rules of Evidence Act nor / 77 9 f / of proof of fact or evidence as defined therein, apply ■ to disciplinary u proceeding. When the authority accepts that evidence and conclusion V receives support therefrom, the Disciplinary Authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunaf it its power of judicial review does not act as Appellate Authority to re-appreciate the I evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the Rules of natural justice or in violation of statutory Rules prescribing the mode of inquiry or where the conclusion or finding reached by the Disciplinary Authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with me conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case."
Laying down the scope of judicial review, the Hon'ble Apex Court in Union of India v. P. Gunasdk%ran, (2015) 2 SCC 610, has observed as under:
"Despite the ■well-settled position, it is painfully disturbing to note that the High Court.has acted as an Appellate Authority in the disciplinary proceedings, re-appreciating even the evidence before the enquiry officer. The.finding on Charge No.-hwas-accepted by the Disciplinary Authority and was also endorsed by the Central Administrative Tribunal. In disciplinary f proceedings, the-High CouiTishot and cannot act as a second Court of first appeal. The High . Court, in .exercise of its powers under Article 226/227 of the Constitution of -India, shall not venture into re-appreciation of the evidence. The High Court can only see whether:
(a) the ehquiryls.hei'd EtyJaTOorripefent Authority;
(b) the enquiry'is-held according to the procedure prescribed in that behalf;
(c) there is violation of the principles of natural justice in conducting the proceedings;
(d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case."
•.In Ranjit Thakur v. Union of India & Others, 1989(1)SLI 109 (SC)=(1987}4 SCC 611, the Hon'b le Supreme Court evolved the principle of proportionality in the following words:
............................It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the Court-Martial, if the decision of the Court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from 10 correction. Irrationality and perversity are recognised grounds of Judicial review."
In the aforesaid backdrop and in absence of any extenuating factors which would allow us to take a contrary view, the claim of the applicant fails and the O.A. is accordingly dismissed. No costs.
\ I 1 ! (Dr. Nandita Chatterjee) (BidishaBanerjee) Administrative Member Judicial Member sb \ v •> A' S'?
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