Central Administrative Tribunal - Delhi
Inspr. Vijendra Pal vs Govt. Of Nct Of Delhi Through on 23 February, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA 4125/2013
New Delhi this the 23rd day of February, 2015
Honble Mr. A.K.Bhardwaj, Member (J)
Honble Mr. V.N.Gaur, Member (A)
Inspr. Vijendra Pal,
No.D-1/374, PIS 16810018
S/o Shri Ram Richpal Sharma,
r/o 143, Arthla, Mohan Nagar,
Ghaziabad, UP-201007
Presently posted at Outer District
Group B Aged 58 years. .. Applicant
(By Advocate Shri Sourabh Ahuja)
VERSUS
Govt. of NCT of Delhi through
1. Commissioner of Police,
PHQ, IP Estate, New Delhi.
2. Joint Commissioner of Police
Northern Range, Delhi
Through Commissioner of Police,
PHQ, IP Estate, MSO Building,
New Delhi.
3. Deputy Commissioner of Police,
Outer District,
Through Commissioner of Police,
PHQ, IP Estate, MSO Building,
New Delhi. .. Respondents
(By Advocate Shri Amit Anand )
ORDER
Honble Mr. A.K.Bhardwaj, Member (J):
A show cause notice issued vide office no.4629-30/HAP/NE (P-1) dated 31.03.2011, the applicant herein was called upon to explain his grave misconduct, negligence, carelessness and dereliction in discharge of his official duties, as the FIR No.356/10 u/s 379 IPC P.S. South, Rohini was registered on 01.11.2010 after a considerable delay of 17 days on the pretext that the complainant himself was searching the stolen vehicle. The show cause notice read thus:-
An explanation of Inspr. Vijender Pal, No.D-1/374 was called vide DP/Outer Districts No.11305/HAP/OD dated 06.11.2010 for his grave misconduct, negligence, carelessness and dereliction in the discharge of his official duties in that on perusal of the FIR No. 356/10 u/s 379 IPC P.S.South Rohini, it has come to notice that this case has been registered on 01.11.2010 after a considerable delay of 17 days on the pretext that the complainant himself was searching the stolen vehicle. There has been inordinate delay in registration of the case of MV theft despite repeated direction of the DCP/Outer District as ell as of several instructions of the PHQ for immediate registration of case of Motor Vehicle theft. They delay clearly reflects the lack of supervision on the part of the SHO of South Rohini.
The U.O. for explanation was served upon him. He has submitted his written reply in response to explanation. I have perused the reply submitted by Inspr.Vijender Pal No.D-1/374 and heard in orderly room. He admitted delayed registration.
The above act on the part of Inspr Vijender Pal, No. D-1/374 amounts to grave misconduct, negligence and carelessness in discharge of official duties.
He is, therefore, called upon to show cause as to why his conduct should not be censured for this lapse. His reply, if any, should reach this office within 07 days from the date of receipt of this notice failing which it will be presumed that he has nothing to say in his defence and the matter will be decided ex-parte on merit. In his reply to the notice, the applicant explained that:
(i) the delay in registration of FIR was not attributable to him, as despite efforts made by the I.O SI Anwar Khan, the complainant could not be contacted. And as soon as, he could be contacted/traced, his statement was recorded and the case was registered immediately without any delay.
(ii) the IOs are supposed to record the statement of the complainant in verbatim for the purpose of registration of the case, thus as and when the statement was made by the complainant, the FIR was registered.
(iii) there was no complaint by the complainant regarding the delay in registration of the FIR and neither he nor the IO could have any interest to delay the registration of the case.
(iv) while recording the statement of complainants to register the FIR specific question for not visiting the Police Station and not approaching the IO/SHO in time was put to them and their version was captioned in the FIR.
(v) it had been his experience that in many cases instead of reporting the matter to Police, the victim try to get the vehicle insured if not already insured to seek claim
(vi) the IO posted under him were being briefed from time to time to register the cases immediately as soon as the information regarding the commission of crime was received by them.
2. Having considered the aforementioned reply and given an opportunity of hearing to applicant in O.R, the disciplinary authority confirmed the show cause notice and censured the conduct of the applicant. In the reply preferred by him against the penalty order, the applicant raised the following contentions:-
(i) The delay in registration of FIR was not attributable to him, as despite efforts the complainant/owner of the vehicle could not be contacted and as soon as he has contacted, the FIR was lodged.
(ii). There was no complaint by the victim regarding the delay in registration of FIR, rather the complainant was questioned regarding the delay in visiting the Police Station and contacting the SHO.
(iii) More or less the applicant reiterated his stand taken by him in reply to show cause notice and his appeal also.
The appeal was rejected in terms of the order no.4037-42 P.Sec. NR (III) dated 15.11.2012. Thus, the applicant filed the present OA, praying therein:-
(a) Quash and set aside the impugned orders mentioned in Para 1 of the OA ( i.e. show cause notice dated 31/03.2011, Order of censure dated 14/11/2011 and appellate authoritys order dated 15/11/2012) and accord the Applicant with all consequential benefits viz promotion, seniority etc. and
(b) Award cost in favor of the Applicant and against the respondents. And/or
(c) Pass any further order, which this Honble Tribunal may deem fit, just equitable in the facts and circumstances of the case.
3. The salient grounds espoused in the OA are:-
(i) the FIR No.356/2010 was registered by HC Amar Sukh (duty officer) on the statement of complainant (Shri Pramod Kumar ), as and when he turned up to Police Station for the registration of the case, thus evidently there was no delay in registration of the FIR.
(ii) it is the stand of the complainant (Sh.Pramod Kumar) himself that he could not lodge the report immediately as efforts were being made by him to search the vehicle on his own and subsequently on account of some personal work he had to go out of Delhi.
(iii) when despite efforts, the complainant could not be contacted and immediately on his visit to Police Station, the FIR was lodged, no misconduct can be found to have been committed by the applicant.
(iv) no motive is attributed to applicant for delay in registration of FIR.
(v) the applicant has been penalized for such misconduct which was not alleged against him.
(vi) no action was taken against the investigating officer (SI Anwar Khan) to whom the DD no.26-B dated 15.10.2010 was marked.
(vii) no penalty was imposed against other Inspectors/SHO, namely, Shri Hoshiyar Singh, K.K.Sharma and M.K.Sharma ) for delay of 17 days in registration of FIR.
(viii) normally, show cause notice is issued to SHO for delay in registration of FIR in more than five or more cases, but the applicant has been punished for delay in registration of one FIR alone.
(ix) there was no application of mind by the appellate authority while deciding the appeal of the applicant.
(x) no instructions of senior officer was ever violated by the applicant.
(xi) The act of negligence, error of judgment or innocent mistake do not constitute misconduct.
4. On the other hand, in the counter reply filed on behalf of respondents, it has been espoused that:-
(i) there was delay of 17 days in registration of FIR 356/2010.
(ii) there was sheer negligence on the part of applicant and being the Supervisory Officer, he should have exercised proper supervisory control in much more effective manner, but he failed.
(iii) there was due application of mind by the appellate authority in deciding the appeal.
5. We heard counsel for parties and perused the record. As far as the plea of no misconduct raised on behalf of applicant is concerned, we are of the considered view that the delay in registration of FIR cannot be considered as an innocent mistake constituting no misconduct. Normally acts of negligence by Government servant constitute dereliction to duty, but where it has no adverse ramification, the disciplinary action may not be initiated against the negligent employee. The difference between two types of negligence depends upon the facts of the case. In the present case, where the delay in registration of FIR and investigation could have given sufficient opportunity to the accused to erase the proof and get away after committing cognizable offence, the SHO of police station cannot be heard saying that non registration of FIR immediately at the PS headed by him should not constitute his misconduct. It is for the SHO to ensure that the information regarding commission of cognizable offences are lodged promptly and investigation is set in motion without delay. When DD regarding the theft of the vehicle had been recorded on 15.10.2010, the plea put forth on behalf of applicant that the complainant could turn up after 17 days to narrate the detailed story is least plausible. The information recorded in DD itself could have been used to lodge an FIR and investigation could be started in the matter. The DD contains sufficient information. For easy reference, the same is reproduced hereinbelow:-
DD No.26-B dt. 15.10.10 P.S.-South Rohini DO Information arrival PCR Call & departure
At 11.08 AM it is registered that the Wireless Operator of PS South Rohini has passed information through Intercom PCR Call received from W/Ct. Nelam 8704/PCR regarding theft of M/Cycle Bajaj Pulsar, No.DL-6SQ 4081 from H.No.169, PKT-05,Sec.-02, Rohini PH-9873789079. Information received & registered in Daily Dairy. Information passed to SI Anwar Khan who will go to the place of occurrence and will take proper action. By A/C. It is the duty of the SHO to ensure that Police Station function properly and effectively. When DD was entered on 15.10.2010, it was for him to question the concerned staff for not registering the FIR in the matter and starting the investigation. It was again for him to recommend the action against the staff to whom the DD was marked. Had he recommended the action against the erring staff, probably no action could have been taken against him. Having failed to recommend action against his subordinate, the applicant cannot make his inaction as cudgel for his defence. Nevertheless, we find that only the allegation against the applicant in notice dated 31.03.2014 was that there was inordinate delay in registration of the case and there was lack of supervision on his part, but while confirming the show cause notice, the disciplinary viewed that:-
(i) The applicant had not made sincere efforts to curb the crime.
(ii) He should have formulated strategy to control the crime.
(iii) He deliberately avoided the registration of MV theft.
(iv) The delay of 17 days in registration of MV theft
was without any cogent reason and was
intentional omission on his part.
The non curbing the crime, non formulation of strategy to control the crime and deliberate avoidance to register the MV theft was not the charge against the applicant in the show cause notice. The charge was only of supervisory lapse. Indubitably while
inflicting the penalty of censure upon the applicant, the disciplinary authority was obsesses with the feeling that the applicant was guilty of not curbing the crime; not formulated the strategy to control the crime and deliberately avoiding the registration of MV theft, when these were not the allegation against him in the show cause notice. The applicant could not have been punished for such action/inaction which was not the part of the show cause notice. It is also the stand of the applicant in the OA that certain other SHO (Inspectors) namely, Sh.Hoshiyar Singh, M.K.Sharma and K.K.Sharma were not penalized for delay of 17 days in registration of FIR and the penalty of censure is imposed only in such cases where the delay of registration of MV theft is caused in more than five cases. Therefore, we are of the view that the disciplinary authority need to revisit its order and form its opinion regarding the imposition of penalty upon the applicant only in the wake of lack of supervision on his part which resulted in ordinate delay in registration of the case of MV theft. While doing so, the disciplinary authority also need to keep in view the plea raised by the applicant that in similar cases, the show cause notice issued to certain SHOs was dropped without any penalty and the penalty of censure is imposed upon the SHO when the delay in registration in offence of MV theft is found in more than five cases.
6. In the circumstances, the impugned orders are quashed. The matter is remitted back to the disciplinary authority to pass fresh order. While doing so, the authority would keep in view the plea of the applicant that in similar circumstances no penalty was imposed upon certain other SHOs and also the fact that only charge against the applicant was of lack of supervision which resulted in delay in registration of one FIR. No cost.
( V.N.Gaur ) (A.K.Bhardwaj) Member (A) Member (J) sk s