| SooperKanoon Citation | sooperkanoon.com/55913 |
| Court | Central Administrative Tribunal CAT Delhi |
| Decided On | Apr-02-2008 |
| Judge | V Bali, J A L.K. |
| Appellant | Bharat Singh S.i. (Exe) S/O Late |
| Respondent | Commissioner of Police, Joint |
2. Bharat Singh, the applicant herein, faced a regular departmental enquiry on the following charge, which came to be framed by the enquiry officer after recording statements of HC Sunil Kumar (PW-1), Const.
Dalip (PW-2), HC Ramanand (PW-3), SI Yad Ram (PW-4), Inspr. Ombir Singh (PW-5), Inspr. Jagdish Pandey (PW-6), and Ramesh Kumar Chauhan (PW-7): I, H.V.S. Rathi, E.O. ACP/DE Cell, Delhi charge you SI Bharat Singh No. D-633 (PIS No. 16970165) that while you were posted at CAW Cell, South Delhi, the investigation of case FIR No. 393/03 under Section 498-A/406/420 IPC P.S. H.N.Din, New Delhi was entrusted to you.
During investigation of the said case, L.O.C. of accused Darshan Kumar Sharma was got opened at Immigration Check Post, I.G.I. Airport with the request that the said accused be detained on his arrival, DCP/South Distt. and ACP/CAW Cell/South Distt. may be informed accordingly as the said accused had gone abroad. On 22/3/04 the said accused Darshan Kumar Sharma was intercepted/detained by Immigration Staff of I.G.I. Airport being subject of L.O.C. when he had arrived from Canada but could not be arrested due to Court's directions.
You SI Bharat Singh being I.O. of the said case at that time, did not seize the Passport of accused Darshan Kumar Sharma with ulterior motive, who later on taking advantage of this lapse by you, disappeared and went abroad again on 26.4.04 via Nepal. It delayed more than one year to file the charge sheet against the said accused Darshan Kumar Sharma as he returned back from abroad on 9/5/05 via I.G.I. Airport with the fear of attachment of his immovable property.
The above act on the part of you SI Bharat Singh No. D-633 amounts to gross misconduct, negligence, carelessness and dereliction in the discharge of his office official duties which renders you liable for punishment under the provisions of Delhi Police (Punishment & Appeal) Rules, 1980.
It is pertinent to mention that the FIR referred to in the charge came to be lodged by one Ms. Namita Sharma against her husband, Pankaj sharma; father-in-law, D. K. Sharma; mother-in-law, Sunder Lata Sharma; sister-in-law, Tina Baabbar; and brother-in-law, Praveen Babbar. The accused named above moved Criminal Misc (M) No. 4568/2003 before the Hon'ble Delhi High Court under Section 438 of the Code of Criminal Procedure for grant of anticipatory bail, on 4.11.2003, and were granted interim protection vide order dated 11.11.2003, relevant part whereof reads as follows: Let the petitioners be not arrested till the next date of hearing, subject to the condition that they shall participate in the investigation, as and when required.
When the matter came up for hearing on 23.1.2004, the Hon'ble High Court passed the following order: Before passing any order, I think it proper that efforts should be made by the parties to settle the matter amicably.
Representatives of the parties and counsel of the parties may sit together on 30.1.2004 at 4 p.m. on the 2nd Floor of Bar Association, Delhi High Court, New Delhi.
On 15.4.2004, the matter was adjourned to 4.5.2004 by recording the following order: It is stated by the Learned Counsel for the petitioner that Mr.
K.B.Andley, Sr. Advocate is not available today and seeks adjournment.
On the adjourned date, the following order was passed by the High Court: Learned Counsel for the petitioner submits that he does not represent the petitioner No. 1/ husband of complainant any more.
It is pointed out by Learned Counsel for the State that value of jewellery and other articles is worth Rs. 6.5 lakhs. Learned Counsel for the petitioner submits that petitioners 2 and 3 are ready to deposit the amount of Rs. 5 lakhs. Let him do so by the next date. In the meantime, petitioner No. 3 shall join the investigation as and when required by the IO.It is admitted position that complainant Namita Sharma settled her disputes with her husband and in-laws by accepting Rs. 5 lakhs which were paid in court, on 7.7.2004. The FIR referred to above was later quashed on 21.3.2006. After having settled all her disputes by accepting the amount of Rs. 5 lakhs, Namita Sharma filed a complaint before DCP (South) against S.I. Rajbir, W/S.I. Kusum Dangi and the applicant. The departmental enquiry was, however, ordered against the applicant and W/SI Kusum Dangi. Insofar as, W/SI Kusum Dangi is concerned, against whom a separate charge was framed and against whom also the enquiry officer had held the charges having been substantiated, she got the desired relief from the appellate authority, and punishment awarded to her by the disciplinary authority was set aside vide order dated 3.4.2007. The applicant, during the course of hearing, never denied not having arrested D.K. Sharma, but explained the circumstances under which he thought it proper not to arrest him.
The same are enlisted by the enquiry in his report dated 13.11.2006, which are reproduced below: 1. Ms. Namita made a complaint against three I.Os and also kept the negotiations alive with the accused party. She extracted Rs. 12 lacs from the accused party and flew to abroad. She was not available for the DE and thus was dropped.
2. The accused Darshan Kumar was detained at I.G.I. Airport as there was a L.O.C. against him. The Immigration Officer handed the accused over to the Local Police of P.S., I.G.I. Airport. Since the case was with him he brought him from the airport. The relatives of the accused had already taken the luggage of the accused which he had brought from Canada. The passport of the accused was in the luggage which had already been collected and taken by his relatives.
3. Accused Darshan Kumar told him that the Delhi High Court had given him (D.K. Sharma) interim relief. He saw the order, and the accused was given the interim relief i.e. he be not arrested till 15.4.04. He was asked to attend CAW Cell on the following day. The copy of DD No. 21 is attached at annexure-1. Point A is relevant.
4. On 25.3.04 the accused was called and enquired, who told that in case the Delhi High Court orders him to surrender the passport only then he will obey the order of the Court. Copy of DD No. 22 (Annexure-2) Point-A is relevant.
5. On 15.4.04 the bail application of accused was discussed in Delhi High Court. The Standing Counsel Mr. Dudeja was requested to get the passport of the accused be surrendered with the order of the Hon'ble Judge. The matter was adjourned to 4.5.04. The standing counsel, for the reasons best known to him did not raise the passport issue before the Court. Copy of DD No. 23 (Annexure-3) Point A is relevant.
6. On 4.5.04 the bail matter of the accused Darshan Kumar was taken up in Delhi High Court. Ms. Namita Sharma was also there in the Court. The Court granted anticipatory bail to the accused. Since he was transferred so on 8.5.04 he handed over the file to inspector CAW Cell's reader.
7. The Hon'ble Delhi High Court was well versed with the fact that accused lived in Canada but no order was made regarding surrendering the passport of the accused either to the court or to the police.
The Standing Counsel, despite his request did not raise this point before the Hon'ble Judge.
8. Not only this he asked Ms. Namita Sharma to ask her advocate to request the Hon'ble Judge to order the accused to surrender his passport but she kept mum. She had received some amount from the accused in the Court and the remaining was to be paid. Had Ms.
Namita been examined in the D.E. she would have corroborated to what I have said above.
9. Such direction about passport are always given by the Court. In this case the accused when landed at IGI Airport, the order of Delhi High Court was with him.
The enquiry officer dealt with the defence projected by the applicant and rejected the same by observing thus: Now I discuss the defence taken by the defaulter. The first plea that when the defaulter brought the accused in question from IGI Airport his luggage consisting his passport was already taken by his relatives to his home. This plea is not tenable on the grounds as who had stopped the defaulter by going to the home of the accused and taking the passport or directing his relatives to bring the passport in question to him at CAW Cell. In fact he did not make any efforts in this regard which is evident from the contents of CD No. 21 dated 22.03.04 submitted by the defaulter and its copy enclosed with his defence statement. 2nd plea that on 25.03.04 he had asked the accused to produce his PP but accused told that the same will be produced only when the Court directs so and on the next date of hearing i.e. 15.04.04 he went to Delhi High Court and asked Sh.
Dudeja, Standing Counsel to request/argue the Court to direct D.K. Sharma for surrendering the passport to Police. Arguments of both sides were heard but the defaulter has not mentioned in his CD dated 15.04.04 as what happened about surrendering the passport by D.K. Sharma. On next date of hearing i.e. 04.05.04 the I.O. has not mentioned in his CD about the passport of the accused. The defaulter has neither enclosed copy of any order which debarred him from taking the passport of the accused in police possession nor explained the reason of not doing so anywhere either in his CD or written defence statement. In almost all such cases where the bail is granted to the accused, Courts always order for surrendering the passport to the Police in case it is not already taken into possession to prevent the exit of the accused from India.
The disciplinary authority while accepting the report of the enquiry officer, appears to have bodily lifted the reasons given by the enquiry officer in rejecting the defence of the applicant, but for the last sentence which had great deal of bearing on the controversy in issue, and inflicted upon him the punishment of withholding of next future increment for a period of one year with cumulative effect, vide order dated 24.1.2007. Aggrieved, the applicant filed an appeal which has since been dismissed by the Joint Commissioner of Police, vide order dated 1.5.2007. The defence of the applicant, once again, has been rejected by verbatim reproducing the reasons given by the disciplinary authority, as would be clear from reading of the same, reproduced below: The plea of the appellant that when he brought the accused from IGI Airport to CAW Cell, South District his luggage consisting his passport was already taken by his relatives to his home is not tenable as no body stopped him from taking the passport when detained or directing his relative to bring the passport at CAW Cell, but he did not make any efforts. His another plea that on 25.3.04 he had asked the accused to produce his passport but accused told that he will produce the same on the direction of Hon'ble Court. Accordingly, on 15.4.04 he went to Delhi High Court and asked the Standing Counsel to request the Court for directing the accused to surrender his passport to police, but he has not mentioned any thing about the order of Court regarding passport in CD dated 15.4.04. On next date of hearing i.e. 4.5.04 the appellant has not mentioned in his CD about the passport of the accused. The appellant has neither enclosed copy of any order which debarred him from taking the passport of the accused in police possession nor explained the reason of not doing so anywhere either in his CD or written defence statement which shows that he deliberately did not make efforts to get the passport of the accused.
3. The applicant takes strong exception to the report of the enquiry officer dated 13.11.2006 and the impugned orders dated 24.1.2007 and 1.5.2007 passed by the disciplinary and appellate authorities, respectively, and seeks a writ in the nature of certiorari so as to quash the same. It would be relevant to mention that concededly because of the orders referred to above, the name of the applicant was brought in the secret list of officers of doubtful integrity w.e.f. 24.1.2007, vide order dated 14.3.2007, which is also under challenge.
4. Shri S. S. Panwar, Learned Counsel representing the applicant, vehemently contends that neither the enquiry officer nor the disciplinary and the appellate authorities have taken the defence projected by the applicant in its proper perspective. In fact, the defence which had crucial bearing upon the facts of the case was not even taken into consideration. It is urged by the Learned Counsel that by virtue of provisions contained in Sub-section (2) of Section 438 CrPC, when the High Court or the Court of Session makes a direction under Sub-section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including (i) a condition that the person shall make himself available for interrogation by a police officer as and when required; (ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer; (iii) a condition that the person shall not leave India without the previous permission of the Court; (iv) such order condition as may be imposed under Sub-section (3) of Section 437, as if the bail were granted under that section.
Concededly, in the present case, at no given time, the Hon'ble High Court had imposed the condition that the accused would not leave India without prior permission of the Court. The orders passed by the High Court from time to time have already been reproduced above. It may be recalled at this stage that the enquiry officer clearly mentioned in the last sentence while dealing with the defence of the applicant that 'In almost all such cases where the bail is granted to the accused, Courts always order for surrendering the passport to the Police in case it is not already taken into possession to prevent the exit of the accused from India'. The sentence may not be happily worded, as the condition is not of surrendering passport but of not to leave the country without permission of the court. Be that as it may, if the court may grant anticipatory bail with condition not to leave the country, it was always open for the police officer to seek surrender of the passport. The counsel contends that the impression of the applicant that he could not seek surrender of passport of D.K. Sharma was well-founded and the concerned authorities did not apply their mind at all while considering his defence. The Learned Counsel representing the respondents would, however, contend that the defence projected by the applicant has been taken into consideration by all authorities and this Tribunal would be loathe in substituting its own opinion replacing the one taken by the concerned authorities.
5. We have heard the Learned Counsel representing the parties and with assistance examined the records of the case.
6. We are of the considered opinion that if the defence projected by a delinquent facing departmental enquiry is not considered in the light of provisions of law and the crucial facts, the same would be vitiated and this Tribunal or any court would be duty bound to interfere. The impression of the applicant that he could not get the passport of D.K.Sharma surrendered appears to be well-founded. As mentioned above, at no given time, the High Court passed an order imposing condition upon D.K. Sharma not to leave the country without prior permission of the Court. It appears to us that if the applicant despite non-imposition of the condition by the Court, as mentioned above, would have sought surrender of the passport of D.K. Sharma, he might have faced a contempt charge by the High Court. The enquiry officer was conscious of this fact but would not take the point beyond simply mentioning it.
Insofar as, the disciplinary and the appellate authorities are concerned, they chose to delete this part of the discussion by the enquiry officer, even though the other part was bodily lifted. The impression of the applicant that he could not ask for surrender of passport of D.K. Sharma is also well made out from the facts which were, once again, not taken into consideration at all. The applicant in his defence had clearly mentioned the following amongst other facts: 1. Ms. Namita made a complaint against three I.Os and also kept the negotiations alive with the accused party. She extracted Rs. 12 lacs from the accused party and flew to abroad. She was not available for the DE and thus was dropped.
4. On 25.3.04 the accused was called and enquired, who told that in case the Delhi High Court orders him to surrender the passport only then he will obey the order of the Court. Copy of DD No. 22 (Annexure-2) Point-A is relevant.
5. On 15.4.04 the bail application of accused was discussed in Delhi High Court. The Standing Counsel Mr. Dudeja was requested to get the passport of the accused be surrendered with the order of the Hon'ble Judge. The matter was adjourned to 4.5.04. The standing counsel, for the reasons best known to him did not raise the passport issue before the Court. Copy of DD No. 23 (Annexure-3) Point A is relevant.
6. On 4.5.04 the bail matter of the accused Darshan Kumar was taken up in Delhi High Court. Ms. Namita Sharma was also there in the Court. The Court granted anticipatory bail to the accused. Since he was transferred so on 8.5.04 he handed over the file to inspector CAW Cell's reader.
7. The Hon'ble Delhi High Court was well versed with the fact that accused lived in Canada but no order was made regarding surrendering the passport of the accused either to the court or to the police.
The Standing Counsel, despite his request did not raise this point before the Hon'ble Judge.
8. Not only this he asked Ms. Namita Sharma to ask her advocate to request the Hon'ble Judge to order the accused to surrender his passport but she kept mum. She had received some amount from the accused in the Court and the remaining was to be paid. Had Ms.
Namita been examined in the D.E. she would have corroborated to what I have said above.
9. Such direction about passport are always given by the Court. In this case the accused when landed at IGI Airport, the order of Delhi High Court was with him.
The stand of the applicant, as mentioned above, is fortified from evidence available on records of the case. We have already made a mention of the orders passed by the Delhi High Court. The same were available before the concerned authorities. The applicant also placed on records case diary No. 23 dated 15.4.2004, which reads as follows:Information reached to I.O. Action taken Investigation began Investigation-------------------------------------------------------------------------Details of persons: Arested, on bail, in custody with, dated of remand(Police/Judicial)-------------------------------------------------------------------------DETAILS OF INVESTIGATIONAnticipatory bail matter attended in Hon'ble High Court and is adjourned for 4/5/04 In respect of Report Gemini No. 22 it is submitted that I SI along with the case file left for Delhi Court to attend the Anticipatory Bail matter. After this I SI, reached Room No. 10 of the Hon'ble Delhi Court where standing counsel Shri Dudeja was present.
who was explained the entire circumstances of the case and was asked to request the Hon'ble Court to direct accused D.K. Sharma to surrender his passport. Arguments took place in the case between the counsel for the accused and Sh. Dudeja before the Hon'ble Judge.
After hearing the arguments the next date in the case was fixed for 4/5/04 and I returned from the court.
After this I returned to the cell and explained the circumstances to the Insp/CAW/ Cell/SD.From the case diary dated 15.4.2004, whereas it may not appear to be true that the arguments were addressed on 15.4.2004, as the case appears to be simply adjourned because of the non-availability of the counsel representing the petitioner, but surely the applicant had endeavoured to obtain the order from the Hon'ble High Court for surrender of passport of D.K. Sharma. This case diary came into being far prior to when even Namita Sharma made a complaint against the applicant and other police officials. The existence of the same has not been doubted by the concerned authorities. We also find from the records of the case and from none other than the order passed by the High court on 16.2.2004 that the petitioners were away at Canada. The fact that D.K. Sharma was in Canada was thus known to the Court, and despite that also if no orders imposing condition so as not to leave the country without prior permission of the Court were passed, the applicant, in our view, could well think that seeking surrender of passport of D.K. Sharma may land him in serious trouble. The plea raised by the applicant that when he asked D.K. Sharma to surrender his passport on 25.3.2004 and he replied by saying that he would do so if the High Court passed an order to that effect, again appears to be correct. Surely, an accused who had been granted anticipatory bail without any condition of leaving the country, would not surrender his passport. The applicant could not insist upon the same. No rules or instructions have been relied upon by the concerned authorities to show that in the circumstances as mentioned above, the applicant could insist upon surrender of passport of D.K. Sharma. The pleas raised by the applicant that no orders imposing condition so as not to leave the country without prior permission of the Court were passed by the High Court; that when the accused landed at IGI Airport, he had with him the order of the High court; that it was within the notice of the Hon'ble Court that the accused had gone abroad, and yet no order was made regarding surrender of passport; that the accused had refused to surrender his passport unless court orders to that effect were passed; and that the applicant had made efforts to get an order from the court, were either not considered at all or considered without relevant data.
In our considered view, the disciplinary and the appellate authorities passed orders mechanically without at all applying their mind. As mentioned above, they have simply reproduced in verbatim the reasons given by the enquiry officer in rejecting the defence of the applicant.
This is no way to do administrative justice. The applicant has not only been visited with penalty of withholding of next future increment for a period of one year with cumulative effect, but in consequence of the said order, his name has been brought on the secret list of officers of doubtful integrity, which would debar him for promotion for a long time.
7. Before we may part with this order, we would also like to mention that the charge against the applicant was that he did not get the passport of D.K. Sharma surrendered on account of extraneous considerations. No evidence was led on that count. We are conscious that the conclusion with regard to extraneous considerations can be drawn or presumed if the indiscipline or misconduct indulged into by a delinquent may be either wholly illegal or unwarranted, but when the misconduct indulged into by a delinquent may itself be debatable, some evidence of extraneous considerations has to be led, which is totally lacking in the present case. There is always a difference between carelessness and deliberate and intentional mistake. The authorities, it appears, were oblivious of this situation. There was intrinsic evidence available on records to return a positive finding that there could be no extraneous considerations for the applicant not to have sought surrender of passport of D.K. Sharma. It may be recalled that from the very first date the Hon'ble High Court was trying a patch-up between the parties. Orders were being passed from time to time to settle the issue amicably, which was indeed settled far before even the complaint came to be filed against the applicant and other police officials. The accused were already on anticipatory bail. There was no condition imposed on them so as not to leave the country. There could be no occasion for them to have sought favour from the applicant and there was no occasion for the applicant either to oblige them in the facts and circumstances of the case.
8. For the reasons mentioned above, this Application is allowed. The report of the enquiry officer dated 13.11.2006, orders dated 24.1.2007 and 1.5.2007 passed by the disciplinary and appellate authorities, respectively, are quashed. In consequence of setting aside of the orders aforesaid, the order dated 14.3.2007 bringing the name of the applicant on secret list of officers of doubtful integrity, which, as mentioned above, is in consequence to the orders aforesaid, shall also be quashed. The applicant shall be entitled to all consequential benefits as per rules. The Application deserves to be allowed with costs. We cannot compensate the applicant with all the suffering and miseries he might have gone through as also the adverse affect of the impugned orders, but surely he can be compensated in terms of costs of this litigation, which we quantify at Rs. 5000/- (Rupees five thousand only)