Bhojraj Singh vs Govt. Of NCT Of Delhi & Ors

Harvinder Kaur Oberoi, Member (J)

By way of filing this OA, the applicant has sought the following reliefs:-

"8.1 To quash and set aside the order of disciplinary authority dated 9.12.2014 whereby the major punishment i.e. forfeiture of 1(one) year approved service temporarily for a period of one year entailing proportionate reduction in pay is being imposed upon the applicant and further the suspension period has been decided as period not spent on duty, order dated 5.5.2015 whereby the appeal of the applicant has been rejected, order dated 24.6.2021 whereby the mercy petition of applicant has been rejected and to further direct the respondents that forfeited year of service be restored as it was never forfeited with all consequential benefits including seniority & promotion and pay & allowances and suspension period of applicant be treated as "Spent on Duty" for all intent and purposes.

8.2 To quash and set aside finding of Enquiry Officer dated 10.3.2015.

8.3 To quash and set aside the order dated 9.12.20214 whereby a Departmental Enquiry was initiated against the applicant.

8.4 That order dated 25.6.2015 be quashed and set aside and the name of the applicant be removed from the Secret List of Doubtful integrity w.e.f. the date of inception.

8.5 That order dated 25.6.2015 (in respect of applicant) to an extent whereby it granted the benefit of 1st MACP Scheme w.e.f. 15.3.2021 instead of 1.12.2020 and to further direct the respondents that applicant be given benefit of 1st MACP Scheme w.e.f. 1.12.2020 with all consequential benefits.

Or/and

(i) Any other relief which this Hon'ble court deems fit and proper may also be awarded to the applicant."

The applicant was appointed as a Sub-Inspector in Delhi Police in 2010 and has rendered more than ten years of service with an otherwise clean and unblemished record. He successfully completed his probation in 2013 and was thereafter posted to Police Station Okhla, which was his first field posting. The present departmental enquiry and the punishment imposed therein have adversely affected his service career, including delay in grant of MACP benefits, thereby impacting his pay and future prospects.

The disciplinary proceedings arose from allegations that while posted at PS Okhla Industrial Area, the applicant, acting as Investigating Officer in a case registered pursuant to a complaint involving alleged financial fraud, improperly issued notices under Section 160 Cr.P.C. to two women, namely Ms. Deepa Rath and Ms. Shikha Sharma, without application of mind and without prior approval or intimation to the SHO. It was alleged that such action violated the provisions of law and amounted to misconduct, negligence, and indiscipline. Consequently, the applicant was placed under suspension on 15.10.2014, which was later revoked on 29.01.2015, and a departmental enquiry was initiated.

The applicant denied the allegations from the outset and submitted that he acted bona fide in discharge of his official duties. He contended that the two individuals were summoned as persons acquainted with the facts of the case and not as accused, and that Section 160 Cr.P.C. empowers the Investigating Officer to require attendance of such persons without mandating prior approval from the SHO. He further submitted that both individuals cooperated in the investigation, appeared with legal assistance, and no complaint was ever made against him regarding harassment or misconduct. It was also argued that there was no allegation or evidence of any mala fide intention, wrongful motive, or abuse of power on his part.

The applicant challenged the enquiry proceedings on the ground that material witnesses, namely Ms. Deepa Rath and Ms. Shikha Sharma, were not examined during the enquiry, thereby depriving him of the opportunity to cross-examine them and causing serious prejudice to his defence. He asserted that the findings of the Enquiry Officer were based on conjectures and surmises without proper appreciation of evidence and in violation of the prescribed rules, particularly Rule 16(ix) of the Delhi Police (Punishment and Appeal) Rules.

Despite his defence, the disciplinary authority imposed a major penalty of forfeiture of one year of approved service temporarily, entailing proportionate reduction in pay, and treated the suspension period as not spent on duty. Counsel for the applicant contended that the order of punishment was arbitrary, non-speaking, and passed without due consideration of his submissions. The statutory appeal of the applicant was also rejected in a similarly mechanical manner without addressing the issues raised.

Counsel for the applicant further submitted that the punishment imposed is grossly disproportionate to the alleged misconduct, especially when no mala fide intent or actual harm was established.

Counsel for the applicant also raised the ground of hostile discrimination, pointing out that senior officers involved in the same matter were awarded minor penalties such as warning and displeasure, whereas he alone was subjected to a major penalty, in violation of Articles 14 and 16 of the Constitution of India.

Additionally, the applicant's name was placed in the secret list of doubtful integrity for a period of three years, which he challenged on the ground that the alleged lapse was procedural in nature and did not involve corruption or moral turpitude, making such classification unjustified. The applicant further submitted that the punishment led to deferment of his MACP benefits, causing continuing financial prejudice.

The applicant also filed a mercy petition, which was rejected on the ground that there is no provision for revision or second appeal under the applicable rules. He contended that this rejection was also non-speaking and failed to consider the merits of his case.

In support of his case, counsel for the applicant relied on the principle that acts done in good faith in discharge of official duties do not constitute misconduct, as reflected in Section 138 of the Delhi Police Act. He argued that at most, the alleged lapse amounts to an error of judgment or procedural irregularity without any ill intent, which cannot justify imposition of a major penalty.

On these grounds, counsel for the applicant has challenged the departmental enquiry, the punishment order, the appellate order, the inclusion of name of the applicant in the secret list, and the consequential denial and deferment of MACP benefits, seeking appropriate relief on the basis that the entire action is arbitrary, disproportionate, unsupported by evidence, and contrary to law.

Counsel for the respondents has filed the counter affidavit and submitted that the scope of judicial review in disciplinary matters is limited and well settled by the Hon'ble Supreme Court. Reliance is placed upon the judgment in Union of India & Ors. v. P. Gunasekaran (2015) 2 SCC 610, wherein it has been held that the High Court, while exercising jurisdiction under Articles 226/227 of the Constitution of India, cannot act as an appellate authority to reappreciate evidence in disciplinary proceedings. The Court can only examine whether the enquiry was conducted by a competent authority, in accordance with prescribed procedure, in compliance with principles of natural justice, and whether the findings are based on some evidence and are not arbitrary or perverse. It is further held that adequacy or reliability of evidence cannot be gone into, nor can errors of fact be corrected unless the findings are wholly unsupported by evidence or shock the conscience of the Court.

Further reliance is placed on B.C. Chaturvedi v. Union of India & Ors. (1995) 6 SCC 749, wherein it has been held that judicial review is concerned with the decision-making process and not the merits of the decision itself. The Court or Tribunal is only required to ensure that the enquiry was conducted by a competent authority, in accordance with law, and that principles of natural justice were followed. The disciplinary authority is the sole judge of facts, and once findings are based on some evidence, the Court cannot substitute its own conclusions or reappreciate the evidence.

Counsel for the respondents submitted that a regular departmental enquiry was initiated against the applicant, SI Bhoj Raj Singh, on the basis of allegations that while posted at PS Okhla Industrial Area, he violated the provisions of Section 160 Cr.P.C. by summoning female witnesses to the police station without adhering to the mandatory legal requirement that women should not be required to attend any place other than their place of residence. The enquiry was conducted by a competent Enquiry Officer after observing all procedural formalities, and the charge was found proved on the basis of evidence on record.

Counsel for the respondents submit that during the course of enquiry, the applicant was given full opportunity to defend himself, including supply of documents, examination of witnesses, and submission of defence statement as well as written representation against the findings. The Enquiry Officer considered all evidence and defence pleas and recorded findings in compliance with Rule 16(ix) of the Delhi Police (Punishment and Appeal) Rules, 1980. The contention of the applicant that material witnesses were not examined is denied, as the prosecution witnesses examined during the enquiry sufficiently proved the charge, and examination of additional witnesses was not considered necessary.

It is further submitted that the applicant's defence that he acted bona fide and that no prior approval from the SHO was required is untenable. The respondents contend that the applicant clearly violated the statutory mandate of Section 160 Cr.P.C. by calling female persons to the police station, which is expressly prohibited. The plea that the women had no objection or that they appeared voluntarily does not absolve the applicant from compliance with the legal provision, which is mandatory in nature and intended for protection of women.

Counsel for the respondents also submit that the applicant failed to record any such alleged permission or intimation to the SHO in official records, and the statement of the SHO, examined as a prosecution witness, categorically establishes that no such approval was granted. Therefore, the contention of the applicant in this regard is factually incorrect and unsupported by evidence.

It is further submitted that the disciplinary authority, after considering the entire record including the enquiry report, statements of witnesses, defence submissions, and representation of the applicant, passed a reasoned order imposing the penalty of forfeiture of one year of approved service temporarily with consequential reduction in pay. The punishment is proportionate to the misconduct, particularly considering that the violation relates to a statutory safeguard concerning women.

The appellate authority also independently examined the entire record, including the grounds raised in appeal, and granted an opportunity of personal hearing to the applicant. After due consideration, the appellate authority found no merit in the appeal and upheld the punishment. The order of the appellate authority is reasoned and cannot be termed as mechanical or non-speaking.

The contention of the applicant regarding discrimination is also denied. It is submitted that the roles and responsibilities of different officers were distinct, and while supervisory officers were dealt with for lapses in supervision by awarding minor penalties, the applicant, being the Investigating Officer directly responsible for the violation, was rightly subjected to a higher penalty. Thus, there is no violation of Articles 14 and 16 of the Constitution.

Counsel for the respondents further submit that the inclusion of the applicant's name in the Secret List of Doubtful Integrity was done in accordance with the applicable Standing Orders and with due approval of competent authority. The plea that the misconduct was merely procedural and does not justify such inclusion is without merit.

It is also submitted that the applicant's contention regarding delay in MACP benefits is misconceived. The deferment of MACP was a direct consequence of the punishment imposed and the period of suspension being treated as not spent on duty, which is in accordance with applicable rules. The applicant cannot claim any vested right contrary to the rules governing service benefits.

The rejection of the mercy petition is also justified, as there is no provision for revision or second appeal under the relevant rules, and the same was decided in accordance with law. The plea of ignorance of legal remedies is untenable, as ignorance of law is no excuse.

We have heard the learned counsel for the parties and, with their assistance, have carefully gone through the pleadings and material available on record. The primary issues that arise for consideration are whether the disciplinary proceedings and the resultant punishment suffer from arbitrariness, discrimination, non- consideration of material evidence, and disproportionality.

At the outset, while it is well settled that the scope of judicial review in disciplinary matters is limited and the Tribunal does not act as an appellate authority to reappreciate evidence, interference is nevertheless warranted where the decision-making process is flawed, material evidence is ignored, or the punishment imposed is arbitrary or shocks the conscience.

In the present case, one of the significant factors which cannot be overlooked is the aspect of differential treatment. It is not in dispute that other officers, including senior officers connected with the same matter, were awarded only minor penalties such as warning or displeasure, whereas the applicant alone has been visited with a major penalty of forfeiture of one year of approved service entailing reduction in pay. The respondents have sought to justify this on the ground that the applicant, being the Investigating Officer, bore direct responsibility. However, the impugned orders do not reflect any cogent reasoning explaining such a stark distinction in the quantum of punishment. In the absence of a clear and rational basis, such unequal treatment violates the principles of equality enshrined in Articles 14 and 16 of the Constitution and renders the action arbitrary.

Another crucial aspect is the Notice U/S 160 Cr.PC dated 06.10.2014 (Annexure A-14) issued to Ms. Deepa Rath, which, as borne out from the record, also carries the signature of the SHO on the same date. This fact assumes importance inasmuch as one of the charges against the applicant is that he acted without prior approval or intimation to the SHO. The presence of the SHO's signature on the notice prima facie indicates knowledge, if not approval, of the action taken by the applicant. There is nothing on record to show that this material piece of evidence was properly considered or dealt with either by the Enquiry Officer or by the disciplinary authority. Non- consideration of such a relevant document vitiates the findings and reflects non-application of mind.

Further, even if the allegation that the applicant issued notice under Section 160 Cr.P.C. to female witnesses is taken as proved, the nature of misconduct appears to be procedural. There is no allegation of mala fide intention, corruption, or abuse of authority for personal gain. The act was performed in the course of investigation. In this context, the case of the applicant squarely falls within Clause 7(d) of Standing Order No. 265, which pertains to administrative lapses, minor violations of conduct rules, and acts of indiscipline. Such lapses ordinarily warrant minor penalties and not a major penalty of the kind imposed upon the applicant.

The contention of the applicant regarding non-examination of the material witnesses, namely Ms. Deepa Rath and Ms. Shikha Sharma, also merits consideration. These witnesses were directly concerned with the alleged misconduct, and their non-examination deprived the applicant of an effective opportunity to test the veracity of the allegations through cross-examination. This omission has caused prejudice to the defence of the applicant and weakens the evidentiary basis of the findings.

On the question of proportionality, we find that the punishment imposed is excessive and not commensurate with the nature of the lapse, particularly when no actual harm, coercion, or complaint by the concerned women has been brought on record. The disparity in treatment vis-à-vis other officers further reinforces the conclusion that the penalty is disproportionate.

Insofar as the inclusion of the applicant's name in the Secret List of Doubtful Integrity is concerned, the same also appears unsustainable. The misconduct alleged against the applicant does not involve any issue of integrity, moral turpitude, or corruption. It is essentially a procedural lapse, and therefore, branding the applicant as a person of doubtful integrity is unjustified.

The deferment of MACP benefits is admittedly a consequence of the punishment imposed. Therefore, once the punishment is found to be unsustainable or requires modification, the consequential denial of benefits must also be revisited.

In view of the foregoing discussion, we are of the considered opinion that the impugned orders cannot be sustained in their present form. Accordingly, the order of punishment dated 09.12.2014, the appellate order dated 05.05.2015, and the order rejecting the mercy petition are set aside. The matter is remitted back to the disciplinary authority for fresh consideration in accordance with law, keeping in view the observations made herein, particularly with regard to the SHO's signature on the notice, the issue of parity with other similarly placed officers, and the applicability of Clause 7(d). The disciplinary authority shall pass a reasoned order after due consideration of all relevant material.

We further direct that the aforesaid exercise shall be completed within a period of three months from the date of receipt of a certified copy of this order.

The inclusion of the applicant's name in the Secret List of Doubtful Integrity is hereby quashed. The respondents are directed to extend all consequential benefits to the applicant, including reconsideration of MACP benefits from the due date, restoration of pay and seniority as per the outcome of the fresh decision, and appropriate treatment of the suspension period in accordance with rules.

The Original Application is allowed in the above terms. Pending MA(s), if any, shall also stand disposed of. No order as to costs.