Central Administrative Tribunal - Delhi
Rakesh Kumar Joshi vs Comm. Of Police on 21 November, 2022
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OA No. 1791/2018
Item No. 66
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 1791/2018
Reserved on:14.11.2022
Pronounced on: 21.11.2022
Hon'ble Mr. Ashish Kalia, Member (J)
Hon'ble Mr. Anand Mathur, Member (A)
Sh. Rakesh Kumar Joshi
S/o late Sh. Dev Raj Joshi
HC (Exe.) No. 155/RD
District Line, PS K.N. Katju Marg
Outer District (now Rohini District)
Delhi. ... Applicant
(By ADVOCATE : Mr. Chetan Bundela)
Versus
Deputy Commissioner of Police
Rohini District, Begum Pur, Delhi ... Respondent
(By ADVOCATE: Sh. Anuj Kumar Sharma)
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OA No. 1791/2018
Item No. 66
O R D E R (ORAL)
Mr. Ashish Kalia, Member (J):
This OA has been filed by the applicant seeking the following reliefs:
(a) Quash and set aside the Office order No. (F-
16/(83)/NR-17) 668-73 P.Sec. NR (III) dated 01.03.2018 passed by Dr. Sagar Preet Hooda, Joint Commissioner of Police, Northern Range: Delhi whereby up holding the decision of the Disciplinary Authority;
(b) Set aside the order No. 13559-78/HAP (P-I)/RD dated 16.10.2017 thereby seizing the two years approved services permanently of the applicant and entailing proportionate reduction in his pay with immediate effect;
(c) Pass the direction to the respondent to add the two year approved service in the employment of the applicant and to give all service benefits and advantages which has been withhold by the respondent.
(d) Pass any other order which this Hon'ble Tribunal deem fit and proper under the facts and circumstances of the case in favour of the applicant and against the respondent.
2. The applicant joined the respondent department on 03.04.1980 and was later on promoted as a Head Constable in the year 2001. In the year 2016, when he was posted at Police Station K.N. Katju Marg, he was handed over investigation of case FIR No. 49/16 under section 354, 354A, 354B, 354D, 341, 323, 509 of IPC. The case was registered on the complaint of one Ms. Shagufta, against the accused Naushad who on 14.01.2016 approached her with the intent of outraging her modesty and also slapped her. The case was registered and entrusted to the applicant herein. During investigation of the said case, the accused moved an application for interim bail on 02.02.2016 which was granted on 04.02.2016. The bail was granted till 05.03.2016. It was alleged 3 OA No. 1791/2018 Item No. 66 that the applicant being the Inquiry Officer in the said case did not inform the complainant about the bail matter.
3. Disciplinary Inquiry was initiated against the applicant and charges were leveled against him vide charge memo dated 11.02.2017, which read as follows:
"I, Rajender Singh, Inspector/Investigation, PS S.B. Dairy (Enquiry Officer, hereby charge you, Head Constable Rakesh Joshi, No. 155/OD (now 155/RD) (PIS No. 28800202) that while posted at P.S. K.N. Katju Marg, you did not maintain absolute integrity and conduct during the investigation of case FIR No. 49/16 dated 14.01.2016 U/S 354/354A/354B/354D/323/341/509 IPC P.S. K.N. Katju Marg, Delhi in as-much-as the above said case was registered on the complaint of Ms. Shagufta D/o Sh. Zahid Hussain R/o 71-D, I-Block, Platinum Enclave, Sector-18, Rohini, Delhi (age 20 years) wherein she alleged in her complaint that one Naushad was harassing her since long but she avoided him. She further alleged that on 14.01.2016, at about 6.00 PM, she was coming back her home from Coaching Institute and when she reached near Manav Chowk, Sector 15, Rohini, the said Naushad came in his car, caught hold her hands, took off her chunni with the intention to outrage her modesty and slapped her. Therefore, the above said case was registered and investigation was entrusted to you.
Therefore, I, specifically, charge you, HC Rakesh Joshi, No. 155/RD that during investigation of above said case, an anticipatory bail application was moved by accused Naushad on 04/02/2016 and the LD. ASJ Sh. M.R. Sethi, Rohini Courts, Delhi granted interim bail to him till 05/03/2016. On that day, you did not inform the complainant about the bail matter.
I further charge you, HC Rakesh Joshi, No. 155/RD that on 07.02.2016, the complainant gave a complaint vide Dy. No. LC-141 dated 07.02.2016 P.S. K.N. Katju Marg, Delhi in the police station that she was receiving threatening calls from accused Naushad through mobile No. 9148318638 and some unknown numbers for the last 4-5 days. You, HC Rakesh Joshi, No. 155/RD formally arrested and released the accused on bail on 22.02.2016 but you did not make any investigation about the complaint of receiving threats. The Accused moved an application in the Hon'ble Session Court to get confirmed his anticipatory bail and same was fixed for 05.03.2016. That bail application was received at police station on
04.03.2016 and you got sanctioned (5+4) Casual leaves w.e.f. 05.03.2016 in the evening of 04.03.2016 and proceeded on leave but you did not handover the bail 4 OA No. 1791/2018 Item No. 66 application to another I.O or MHC(R). You, HC Rakesh Joshi, No. 155/RD got forwarded the reply of bail application from SI Balbir Singh instead of any of the Inspectors present in the police station and despite on leave, you appeared before the court in the said bail matter on 05.03.2016. You, neither informed the complainant about that bail application nor mentioned the facts in his reply about the receiving of threats to the complainant from the accused. Therefore, the Hon'ble Court granted anticipatory bail to accused Naushad. In this way, you did not inform the complainant about bail application deliberately and helped the accused in getting bail. The above act on the part of you, HC Rakesh Joshi No. 155/RD amounts to grave misconduct, negligence and highly unbecoming of a government servant, which renders you liable for the punishment under the provisions of Delhi Police (Punishment & Appeal) Rules, 1980."
4. The applicant, after receipt of above charges submitted his reply on 14.02.2017 stating that the charges were false and frivolous. After holding the disciplinary proceedings, the Inquiry Officer in his findings concluded that the charges against the applicant were not substantiated. Thereafter, the Disciplinary Authority (DA) gave a disagreement note dated 30.05.2017 stating therein the following:
"I have carefully gone through the record available on DE file as well as finding of the EO. I have also gone in detail on the reasons given by the EO for exonerating the delinquent HC. Tentatively, I do not agree with the finding of the EO on the following counts as there are sufficient evidence available against HC Rakesh Joshi, No. 155/RD:-
1. The EO has cited technicalities in exonerating the HC. From the overall circumstances and the fact that the HC did not inform the complainant regarding the filing of application for anticipatory bail and regular bail, there appears to be lot of doubt on the finding.
2. Despite on leave, the delinquent HC appeared before the Hon'ble Court in the said bail matter on 05/03/2016. This act on the part of delinquent HC clearly shows his malafide intention. During DE proceedings, none of the PW has deposed that being on leave, delinquent HC was specifically directed to attend the Hon'ble Court on 05/03/2016 for said bail matter. As such, keeping in view the above 5 OA No. 1791/2018 Item No. 66 facts and discussion, I am of the considered opinion that HC Rakesh Joshi, No. 155/RD helped the accused in getting bail without any doubt and he cannot be absolved of the charge."
5. The said disagreement notice and the findings of the IO were served upon the applicant. In response to this, he gave his reply that he had never been cooperative with the accused and the bail was granted by the Hon'ble Court due to consensual relationship between the accused and complainant as proved from photographs and other documents. The bail order was also not challenged.
6. The written reply and oral submissions made by the applicant were not found to be satisfactory by the DA and therefore, vide order dated 16.10.2017, the applicant was awarded punishment of forfeiture of two (02) years approved service permanently entailing proportionate reduction in his pay with immediate effect. Feeling aggrieved by the said order by DA, the applicant preferred an appeal before the Joint Commissioner of Police which was rejected on 01.03.2018. Hence, the OA.
7. In support of his case, the applicant has relied upon the following judgments of Hon'ble Supreme Court and Hon'ble High Courts:
1. M.S. Bindra vs. Union of India and Ors., C.A. No. 5583 of 1993, decided on 01.09.1998
2. Kuldeep Singh vs. The Commissioner of Police & Anr., decided on 17.12.1998
3. Shri Chander Mohan vs. Union of India, CW No. 5452/99, decided on 21.08.2001 6 OA No. 1791/2018 Item No. 66
4. Yoginath D. Bagde vs. State of Maharashtra & Anr., C.A. No. 15479/1996, decided on 16.09.1999
5. Ram Kishan vs. Union of India and others, C.A. No. 8325/1995, decided on 01.09.1995
6. Punjab National Bank and Ors. Vs. Sh. Kunj Behari Misra, C.A. No. 1884/1993, decided on 19.08.1998
7. D.L. Joshi vs. Secretary Government of Gujarat and Ors., Special Civil Application No. 2109 of 2022, decided on 23.02.2016
8. Notice was issued to the respondent who put its appearance through Sh. Anuj Kumar Sharma, learned counsel. He filed a reply in which after reiterating the facts, the following has been stated in Para 4
(ii) and 4 (iii) "4(ii) That the contents of para 4 (ii) of the OA needs no reply being matter of record. However, from the scrutiny of material as well as facts available on file, it has been crystal clear that the applicant, being an I.O., did not follow the existing Rules/Norms to investigate the matter fairly/properly. The applicant found guilty of charge to help the accused deliberately in getting bail. Being an Investigating Officer, it was his prime duty and responsibility to mention/point out the real facts and circumstances raised by the complainant. He should have mentioned the facts of the complaint made by complainant Ms. Shagufta about receiving threatening calls from accused Naushad in his reply of bail application of accused Naushad. Hence, he was rightly held guilty of charge in the discharging of his official duties assigned to him.
4(iii) That in reply to the contents of para 4 (iii) of the OA, it is stated that as per available record and Disagreement Note issued by the Disciplinary Authority, it has been crystal clear that there was clear motive and covert action on the part of the applicant being an I.O. to help the accused Naushad for getting bail. The applicant had not handed over the bail application to any other I.O. or MHC (R) for further course of action, received in PS/KNK Marg, in the evening of 4.3.2016. Rather, he got sanctioned (5+4) Casual Leave w.e.f. 5.3.2016 in the evening and proceeded on leave and despite on leave he got forwarded the reply of bail application from SI Balbir Singh instead of any other Inspector present in the police station KNK Marg and he appeared before the Hon'ble 7 OA No. 1791/2018 Item No. 66 Court in bail matter on 5.3.2016 i.e. on the day of Casual Leave(C/L). He neither informed the complainant about the bail application nor mentioned the facts about the complaint of receiving threatening calls by the complainant from the accused in his reply. Therefore, the Hon'ble Court granted anticipatory bail to accused Naushad. Thus, he did not inform the complainant Ms. Shagufta deliberately and helped the accused in getting bail."
9. It is submitted in the reply that on denial of charges by the applicant, disciplinary proceedings were initiated against the applicant and he was found guilty of charge to help the accused deliberately in getting the bail and after explanation, the DA has given the disagreement note in accordance with powers conferred under Rule 16 of Delhi Police (Punishment and Appeal) Rules, 1980 on the basis of not agreeing with the finding of Inquiry Officer.
10. Heard learned counsel for the parties at length, perused the records and appreciated the legal position.
11. The short issue raised in the present OA is whether the disagreement note issued by the Disciplinary Authority by giving a Show Cause Notice is in accordance with law or not ? On a reading of the Enquiry Report, it is crystal clear that the complainant Ms. Shagufta has never made any complaint against the applicant for not informing her the date of bail application of the accused. Rather she has admitted that the applicant telephoned her and informed about the date. She has also made no complaint whatsoever that investigation was not being done properly. Further, the language used by the Disciplinary Authority in the disagreement note shows that he had already formed a 8 OA No. 1791/2018 Item No. 66 view against the applicant contrary to the facts available on record which shows that the applicant did inform the date of hearing of bail application to the applicant despite being on leave. It is also not made clear as to how and in what manner, the applicant helped the accused in getting the bail despite being on leave and still appearing before the court. It rather shows his diligence towards his duty. The defence taken by him in this regard is that the bail was granted by the Hon'ble Court due to consensual relationship between the accused and complainant.
12. The case of the applicant is covered by the judgment of the Hon'ble Supreme Court in the case of Punjab National Bank and ors vs. Kunj Behari Misra and anr., AIR 1998 SC 2713. Though a show cause notice was issued to the applicant by the Disciplinary Authority, it did not contain any specific ground on which the Disciplinary Authority was proceeding for proposing to disagree with the finding of Enquiry Officer's report. The Disciplinary Authority was required to assign reasons for such disagreement with the Enquiry Officer's report that too on the basis of record. It cannot rely upon anything which is not part of record. It is not understood as to how the Disciplinary Authority has formed an opinion without referring any material which is available on record, which is not permissible as per the aforementioned judgment that Disciplinary Authority cannot rely upon anything which is not on record. This point has escaped from the notice 9 OA No. 1791/2018 Item No. 66 of Appellate Authority also. Even the Appellate Authority has taken the same view as was already taken by the Disciplinary Authority.
13. Thus, in our considered view, the present case has got merit on its side. The impugned order is liable to be set aside. Hence, the impugned order dated 01.03.2018 and order dated 16.10.2017 is set aside and the case is remanded back to the Disciplinary Authority to give a fresh look in view of the above and give show cause notice by giving tentative charges, if any, by recording reasons in terms of PNB vs Kunj Behari Misra (supra). It is made clear that if the Disciplinary Authority wants to disagree on the basis of material placed on record, the proceedings will continue from the stage of disagreement by the Disciplinary Authority.
The OA is accordingly disposed of. There shall be no order as to costs.
(Anand Mathur) (Ashish Kalia)
Member (A) Member (J)
/NS/