Ajay Kumar vs Govt. Of NCT of Delhi And Ors

Nita Chowdhury, Member (A):

Heard Mr. Yogesh Sharma, learned counsel for applicant and Shri Anmol Pandita, learned counsel for respondents, perused the pleadings and all the judgments produced by both the parties.

In the instant OA filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant is seeking the following reliefs:-

"(i) That the Hon"ble Tribunal may graciously be pleased to pass an order of quashing the impugned penalty order dated 15.08.2015, Appellate order dated 01.03.2016 and Show Cause Notice dated 09.02.2015 (Annexure.A/1 to A/3) with all consequential benefits including the arrears of difference of pay and allowances with interest.

(ii) Any other relief which the Hon"ble Tribunal deem fit and proper may also be granted to the applicant."

The relevant facts of the case are that applicant while working as Sub Inspector in Delhi Police and posted in South West Delhi District, New Delhi, and was given a show cause notice vide order dated 9.2.2015 for imposing a penalty of censure to the applicant which reads as follows:

"In compliance of Court order dated 19.12.2014 passed by Sh. Satish Kumar Arora, CMM, Dwarka Courts, ND and Court order dated 29.12.2014 passed by Sh. Ashutosh Kumar, ASJ, Dwarka Courts, ND, both in case FIR No. 423/2009, 324/307/34 IPC, PS Najafgarh, ND, an enquiry was got conducted through ACP/Najafgarh wherein it is revealed that on receipt of PCR call vide DD No. 3A dated 20.11.2009, a case vide Fir No. 423/09, u/s 324 IPC was registered at PS Najafgarh by first IO SI Ajay Kumar. Thereafter, the case was investigated by six IOs and presently case is investigated by SI Jai Bhagwan PS Najafgarh. The case was initially registered u/s 324 IPC and later section 307 IPC was added in the case. The statement of victim was recorded on 10.01.2012 and accused persons were arrested on 21.12.2014. The previous six IOs had not investigated the case expeditiously. The first IO SI Ajay Kumar failed to register the case under proper section on the day of incident and had not investigated the case expeditiously.

The above act on the part of SI Ajay Kumar, No.D-17231 amounts to gross negligence, carelessness and dereliction in the discharge of your official duties and responsibilities.

He is, therefore, called upon to Show Cause as to why his conduct should not be censured for his aforesaid lapse. His written reply in this regard, 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 the matter will be decided ex-parte on its merits."

The applicant has not submitted his reply to the same but stated that the said show cause notice based on some inquiry but no inquiry report was supplied to the applicant along with the said show cause notice so he was handicapped to submit any reply to the same.

Thereafter the disciplinary authority imposed a penalty of 'Censure' upon the applicant vide order dated 15.8.2015 (Annexure A-1). The relevant portion of the said order is reproduced below:-

"A Show Cause Notice for Censure was issued to SI Ajay Kumar, No. D-1731 (PIS No.16040016) by the then A-DCP-I/SWD vide this office No.846-48/HAP(P-I)/SWD dated 09.02.2005 on the allegation that in compliance of Court order dated 19.12.2014 passed by Sh. Satish Kumar Arora, CMM, Dwarka Courts, ND and Court order dated 29.12.2014 passed by Sh. Ashutosh Kumar, ASJ, Dwarka Courts, ND, both in case FIR No.423/2009, 324/307/34 IPC PS Najafgarh, an enquiry was got conducted through ACP/Najafgarh which revealed that on receipt of PCR call vide DD No. 3 A dated 20.11.2009, a case vide FIR No. 423/09, u/s 324 IPC was registered at PS Najafgarh by first IO SI Ajay Kumar. Thereafter, the case was investigated by six IOs and presently the case was being investigated by SI Jai Bhagwan PS Najafgarh. The case was initially registered u/s 324 IPC and later on section 307 IPC was also added in the case. The statement of victim was recorded on 10.01.2012 and accused persons were arrested on 21.12.2014. The previous six IOs had not investigated the case expeditiously. The first IO SI Ajay Kumar failed to register the case under proper section on the day of incident and had not investigated the case expeditiously. Thus, there was inordinate delay in lodging the FIR by I.O/SI Ajay Kumar, No. D-1731 and this is a clear case of laxity and serious lapse on the part of SI Ajay Kumar, No. D-1731.

A copy of the SCN was served upon SI Ajay Kumar, No. D-1731 (PIS No.16040016) on 16.02.2015 against his proper receipt with the direction to submit his reply within the stipulated period. But, the SI did not bother to reply to the Show Cause Notice despite issue of reminder dated 15.05.2015. Besides more than five months have already elapsed from the date of receipt of the notice but no reply has been submitted by him so far. Non-responding to the official correspondence is a serious lapse on his part, which cannot be accepted in a disciplined force. It is assumed that he has nothing to say in his defence. Hence, the punishment proposed in the Show Cause notice is confirmed and the conduct of SI Ajay Kumar, No.D-1731 (PIS No.16040016) is, hereby, Censured for the lapse on his part.

Let a copy of this order be given to him free of cost. He can file an appeal against the punishment of Censure awarded in this order to the Joint C.P/SWR, Delhi within 30 days from the date of its receipt on a non-judicial stamp paper worth Rs.00.75, by enclosing a copy of this order, if he so desires."

The Applicant preferred an appeal. The appellate authority after considering his appeal rejected his appeal vide order dated 1.3.2016. The relevant portion of the appellate authority is extracted below:

"I have gone through the appeal and other documents placed on record. The pleas put forth by the appellant have no force. He was the Ist. I.O. of the case. Being the Ist. I.O., it became his primary duty to record the statement of the victim well in time but he failed in this front. He also failed to register the case under proper sections of law on the day of incident and had not investigated the case expeditiously. Further submitting reply to show cause notice is an official duty and cannot be defined as a personnel work. The appellant was provided ample opportunity to submit his reply in response to the show cause notice but he did not submit the same in spite of issue of reminder and even a lapse of more than five months. This indicates that he had nothing to say in his defence. This shows that he did not follow the system and is viewed adversely. Appeal in writing as well as verbal submission does not hold water in view of the circumstances of the case/investigation and the Hon"ble Court"s observations. On d.d. entry itself 307 IPC could have been instituted instead of 324 IPC. Hence the appeal is rejected."

5.The learned counsel for the applicant vehemently submits that the impugned memorandum, the penalty order and the appellate order are violative of Articles 14 and 16 of the Constitution of India and they are discriminatory in nature as according to him, the orders of the disciplinary and appellate authorities are non-speaking and unreasoned orders and further the punishment awarded upon the applicant is disproportionate to the charge levelled against him and also the said punishment is based on suspicious and surmises. Counsel further submitted that appellant"s senior/supervisor officers, i.e., SHO and ACP were well conversant with the issue but did not guide or give any direction to any of IOs in this matter and therefore, there was no misconduct on the part of the applicant and that applicant performed his duties bonafidely and the allegation against the applicant at best can be a case of error of judgment for which no motive can be attributed to the applicant. In support of his contention, learned counsel for the applicant placed reliance on the judgment of Hon"ble Supreme Court in the case of Inspector Prem Chand vs. Govt. of NCT of Delhi, JT 2007 (5) SC 294. The relevant part of which reads as under:-

"12. It is not in dispute that a disciplinary proceeding was initiated against the appellant in terms of the provisions of the Delhi Police (Punishment and Appeal) Rules, 1980. It was, therefore, necessary for the disciplinary authority to arrive at a finding of fact that the appellant was guilty of an unlawful behaviour in relation to discharge of his duties in service, which was willful in character. No such finding was arrived at. An error of judgment, as noticed hereinbefore, per se is not a misconduct. A negligence simpliciter also would not be a misconduct."

Counsel for the applicant further contends that there are many other persons involved in this matter but only the applicant was awarded the aforesaid punishment and as such the aforesaid punishment awarded to the applicant is disproportionate to the gravity of misconduct alleged against him.

The respondents in his reply contested the applicability of the ruling cited by the applicant and stated that punishment of censure which has been awarded is complete in itself and no allegations of misconduct has been made. The final order clearly points out that "A copy of the SCN was served upon SI Ajay Kumar, No. D-1731 (PIS No.16040016) on 16.02.2015 against his proper receipt with the direction to submit his reply within the stipulated period. But, the SI did not bother to reply to the Show Cause Notice despite issue of reminder dated 15.05.2015. Besides more than five months have already elapsed from the date of receipt of the notice but no reply has been submitted by him so far. Non-responding to the official correspondence is a serious lapse on his part, which cannot be accepted in a disciplined force. It is assumed that he has nothing to say in his defence. Hence, the punishment proposed in the Show Cause notice is confirmed and the conduct of SI Ajay Kumar, No.D-1731 (PIS No.16040016) is, hereby, Censured for the lapse on his part." This order is complete in itself and he further points out that the said show cause notice in this case was issued in compliance of Court order dated 19.12.2014 passed by Sh. Satish Kumar Arora, CMM, Dwarka Courts, ND and Court order dated 29.12.2014 passed by Sh. Ashutosh Kumar, ASJ, Dwarka Courts, ND, both in case FIR No.423/2009, 324/307/34 IPC PS Najafgarh. Hence, the order itself shows full application of mind and as such the applicant cannot get any benefit of the judgment of the Hon"ble Supreme Court cited supra.

Counsel for the respondents further submits that what punishment is to be awarded in a case depends upon the facts and circumstances of each case. Counsel further submits that Hon"ble Supreme Court in catena of judgments on question of proportionality of punishment has held that it is only in those cases where the punishment is so disproportionate that it shocks the conscience of the court that the matter may be remitted back to the authorities for reconsidering the question of quantum of punishment.

However, counsel for the applicant has not brought to my notice any violation of procedural rules in the above said departmental proceedings. With regard to the scope of judicial review to be exercised by the Tribunal in so far as the departmental enquiries are concerned, the Hon"ble Supreme Court has laid down the law in several cases, which have been enumerated below: In the case of K.L.Shinde Vs. State of Mysore (1976) 3 SCC 76), the Hon"ble Supreme Court in para 9 observed as under:-

"9. Regarding the appellant's contention that there was no evidence to substantiate the charge against him, it may be observed that neither the High Court nor this Court can re-examine and re-assess the evidence in writ proceedings. Whether or not there is sufficient evidence against a delinquent to justify his dismissal from service is a matter on which this Court cannot embark. It may also be observed that departmental proceedings do not stand on the same footing as criminal prosecutions in which high degree of proof is required. It is true that in the instant case reliance was placed by the Superintendent of Police on the earlier statements made by the three police constables including Akki from which they resiled but that did not vitiate the enquiry or the impugned order of dismissal, as departmental proceedings are not governed by strict rules of evidence as contained in the Evidence Act. That apart, as already stated, copies of the statements made by these constables were furnished to the appellant and he cross - examined all of them with the help of the police friend provided to him. It is also significant that Akki admitted in the course of his statement that he did make the former statement before P. S. I. Khada - bazar police station, Belgaum, on November 21, 1961 (which revealed appellant's complicity in the smuggling activity) but when asked to explain as to why he made that statement, he expressed his inability to do so. The present case is, in our opinion, covered by a decision of this Court in State of Mysore v. Shivabasappa, (1963) 2 SCR 943 = AIR 1963 SC 375 where it was held as follows:-

"Domestic tribunals exercising quasi-judicial functions are not courts and therefore, they are not bound to follow the procedure prescribed for trial of actions in courts nor are they bound by strict rules of evidence. They can, unlike courts, obtain all information material for the points under enquiry from all sources, and through all channels, without being fettered by rules and procedure which govern proceedings in court. The only obligation which the law casts on them is that they should not act on any information which they may receive unless they put it to the party against who it is to be used and give him a fair opportunity to explain it. What is a fair opportunity must depend on the facts and circumstances of each case, but where such an opportunity has been given, the proceedings are not open to attack on the ground that the enquiry was not conducted in accordance with the procedure followed in courts.

In respect of taking the evidence in an enquiry before such tribunal, the person against whom a charge is made should know the evidence which is given against him, so that he might be in a position to give his explanation. When the evidence is oral, normally the explanation of the witness will in its entirety, take place before the party charged who will have full opportunity of cross-examining him. The position is the same when a witness is called, the statement given previously by him behind the back of the party is put to him ,and admitted in evidence, a copy thereof is given to the party and he is given an opportunity to cross-examine him. To require in that case that the contents of the previous statement should be repeated by the witness word by word and sentence by sentence, is to insist on bare technicalities and rules of natural justice are matters not of form but of substance. They are sufficiently complied with when previous statements given by witnesses are read over to them, marked on their admission, copies thereof given to the person charged and he is given an opportunity to cross-examine them."

Again in the case of B.C.Chaturvedi Vs. UOI & Others (AIR 1996 SC 484) at para 12 and 13, the Hon"ble Supreme Court observed as under:-

"12. 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 conclusion which the authority reaches is necessarily correct in eye of the Court. When an inquiry is conducted on charges of a misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice be 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 of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent office is guilty of the charge. The Court/Tribunal on its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at the 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 of 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 the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.

The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has co-extensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H. C. Goel (1964) 4 SCR 718 : (AIR 1964 SC 364), this Court held at page 728 (of SCR): (at p 369 of AIR), that if the conclusion, upon consideration of the evidence, reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued".

Recently in the case of Union of India and Others Vs. P.Gunasekaran (2015(2) SCC 610), the Hon"ble Supreme Court 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.I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not 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 enquiry is held by a competent 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;

e. the authorities have allowed themselves to be influenced by irrelevant or extraneous consideration;

f. the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;

g. the disciplinary authority had erroneously failed to admit the admissible and material evidence;

h. the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;

i. the finding of fact is based on no evidence."

Further in the case of Administrator, Union Territory of Dadra and Nagar Haveli Vs. Gulabhia M. Lad reported in 2010 (3) ALSLJ SC 28, Hon"ble Supreme Court held as follows as under:-

"The legal position is fairly well settled that while exercising power of judicial review, the High Court or a Tribunal it cannot interfere with the discretion exercised by the Disciplinary Authority, and/or on appeal the Appellate Authority with regard to the imposition of punishment unless such discretion suffers from illegality or material procedural irregularity or that would shock the conscience of the Court/Tribunal".

In view of the facts of the case and in view of the law laid down by the Hon"ble Supreme Court supra and as no violation of any procedural formalities is alleged nor found and further this court is of the considered view that punishment imposed by the impugned order dated 15.8.2015 is not so disproportionate that it shocks the conscience of the court, therefore, no case is made out for interference by the Tribunal even on the question of quantum of punishment, there is no merit in the OA.

In the result, the present OA being devoid of merit is dismissed. No order as to costs.