K.N. Shrivastava, Member (A)
1. Through the medium of this O.A., filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has prayed for the following
reliefs:
“(a) quash and set aside the impugned actions/orders placed at Annexure A/1, A/2 and Annexure A/3.
(b) award all consequential benefits including monetary and seniority benefits.â€
2. The factual matrix of the case, as noticed from the records, is as under:-
2.1 The applicant initially joined as a Constable in Delhi Police and later secured his promotion as Head Constable (HC) and thereafter as an Assistant
Sub Inspector (ASI).
2.2 The Deputy Commissioner of Police, East District, Delhi, vide his Annexure A-4 order dated 04.09.2008, ordered for conduct of regular
departmental enquiry against the applicant to be conducted by Mr. Rajender Singh, Additional Commissioner of Police (ACP), Kalyan Puri.
The order contained the following charge against him:
“It is alleged against ASI Raj Kumar, No.4661-D (PIS No.28770454) that on 18.6.07 while posted in Operation Cell/North Distt., he arrested one
Hirdesh Kumar s/o Sh. Shankar Lal R/o Village Bechola, PS Khurja, Dehat, Distt. Bulandsahar (UP) in case FIR No.246/07 dated 15.6.07 u/s
20/21/61/85 NDPS Act, PS Chandni Chowk on the basis of his disclosure statement of his co-accused Ramesh when there were no reasons and
sufficient grounds to arrest the accused Hirdesh Kumar on the basis of said disclosure statements. It is also alleged against, ASI Raj Kumar No.461/D
that he filed the chargesheet of conspiracy against accused Hirdesh Kumar and his co- accused Ramesh without an independent evidence to support
the charge of conspiracy u/s 29 NDPS Act against accused Hirdesh Kumar. Consequently the court of Sh. Babu Lal, ASJ, Special Judge/NDPS,
Delhi had no option but to discharge the accused Hirdesh Kumar.
The above act on the part of ASI Raj Kumar, No.461-D amounts to gross misconduct, negligence, showing un-professionalism towards investigation
and dereliction in discharge of his official duty which renders him liable to be dealt with departmental under the provision of Delhi Police (Punishment
& Appeal) Rules 1980.â€
2.3 The Enquiry Officer issued a summary of allegations (Annexure A-5) on 21.01.2010, in which the allegations made in Annexure A-4 order were
repeated.
2.4 The applicant participated in the enquiry proceedings. He also submitted his defence statement (Annexure A-6) dated 26.08.2011. The enquiry
officer submitted his report to the disciplinary authority concluding as under:-
“In view of above facts and circumstances the negligence and unprofessionalism towards investigation is proved on the test of preponderance of
probability of evidence, on the part of 2nd IO, ASI Raj Kumar but no evidence of malafide has emerged during the course of enquiry. As regards, the
allegations of arresting the accused and preparing the challan in collusion with SI Naseeb Singh is concerned, the same remained un-substantiated.
The case was investigated under the close supervision of senior officers.â€
2.5 A copy of the enquiry officerâ€s report was provided to the applicant for his comment/representation by the disciplinary authority, against which
he submitted his Annexure A-7 representation. Not satisfied with the representation of the applicant and acting on the findings of the enquiry officer,
the disciplinary authority, namely, the Deputy Commissioner of Police, East District, Delhi, vide his Annexure A-2 order dated 25.11.2011, imposed the
punishment of „forfeiture of one year approved service permanently†on the applicant.
2.6 The applicant submitted his Annexure A-9 appeal before the departmental appellate authority, namely, the Joint Commissioner of Police (South-
Eastern Range), Delhi, who vide his impugned Annexure A-1 order dated 23.11.2012, dismissed the appeal and upheld the order passed by the
disciplinary authority.
Aggrieved by the impugned Annexures A-1 & A-2 orders, the applicant has filed the instant O.A. praying for the reliefs as indicated in paragraph (1)
above.
3. In support of the reliefs claimed, the applicant has pleaded the following important grounds:-
3.1 Constable Hirdesh Kumar was arrested on the direction of senior officers on the basis of disclosure statement and identification of accused
Ramesh. The discharge of Constable Hirdesh Kumar does not, in any manner, indicate any misconduct or negligence on the part of the applicant.
3.2 The Director of Prosecution, Govt. of NCT of Delhi, after the discharge of Constable Hirdesh Kumar, vide his Annexure A-8 letter dated
25.02.2008 to the Secretary, Law & Judicial, Govt. of NCT of Delhi, had advised to challenge the order dated 18.09.2007 of Additional Sessions
Judge, Tis Hazari Courts whereby the Constable Hirdesh Kumar was discharged; in the Honâ€ble Delhi High Court.
3.3 An accused Constable Hirdesh Kumar was produced before the authorities of NCB and also the senior officers of the applicant, and action was
taken according to the directions of the senior officers.
3.4 The penalty has been inflicted on same grounds, which do not form part of the specific charge against the applicant, and hence, the penalty orders
based on such extraneous grounds are illegal.
3.5 It is not correct to say that Muneem and Charan Singh (who were allegedly supplying charas and ganja) have not been charge-sheeted. As a
matter of fact, their names have been kept in column No.2 of the charge-sheet.
3.6 There is no charge framed against the applicant that he did not make any sincere efforts to collect the documents from NCB godown or to
corroborate pilferage of NCB godown and warehouses. As a matter of fact, the narcotic cases are required to be investigated by a gazetted officer of
the rank of ACP and that the lower staff attached to the ACP are only required to render assistance to him and are not required to act on their own
volition.
4. Pursuant to the notices issued, the respondents entered appearance and filed their reply, in which they have made the following averments:
4.1 The disciplinary enquiry proceedings were initiated against the applicant on the allegation that on 18.06.2007 while posted in Operation Cell of
North District, he arrested Constable Hirdesh Kumar in case FIR No.246/07 dated 15.06.2007 under Sections 20, 21, 61 & 85 of Narcotics, Drugs
and Psychotropic Substances (NDPS) Act, 1985, P.S. Chandni Chowk on the basis of the disclosure statement of his co-accused Ramesh. There was
no sufficient ground to arrest Constable Hirdesh Kumar. Even the charge-sheet against Constable Hirdesh Kumar was filed by the applicant entirely
on the basis of disclosure statement of co-accused Ramesh without any evidence.
4.2 No recovery was effected from the accused. The applicant did not make any sincere efforts to apprehend/interrogate the other two accused
persons, namely, Muneem Singh and Charan Singh, who allegedly supplied charas and ganja to the accused.
4.3 There is nothing on the record to prove that the accused was interrogated in the presence of NCB officials. No official of NCB was examined to
ascertain the leakage of ganja on the issue of the source of supply of ganja from NCB office godown. As a matter of fact, after arresting the accused
personnel, the applicant ought to have recorded the statement of In-charge of NCB godown or any other concerned official of NCB.
4.4 As per the rules/instructions, the fact of the arrest of an accused must be brought to the notice of SHO or supervisory Inspector or Inspector
immediately and the accused must be produced before the Inspector/ACP and a DD entry was required to be lodged, which apparent was not done.
4.5 It was expected of the investing officer (applicant) to make efforts to investigate the case properly but he miserably failed in that.
5. With the completion of pleadings, the case was taken up for hearing the arguments of learned counsel for the parties. Arguments of Mr. Ajesh
Luthra, learned counsel for applicant and Mrs. P.K. Gupta, learned counsel for respondents heard on 28.08.2018.
6. Mr. Ajesh Luthra, learned counsel for applicant, besides reiterating the averments made in the O.A., drew our attention to the deposition of DW-1
Head Constable Suresh Chand, wherein DW-1 has clearly stated that accused Constable Hirdesh Kumar was interrogated by the applicant and
produced before senior officers of NCB, R.K. Puram, who verified the fact and handed over Constable Hirdesh Kumar to the applicant, and that the
DW-1 has also stated that he, along with the applicant, had gone to arrest other accused, namely, Muneem and Charan Singh, but due to their
incomplete addresses, they could not be arrested.
7. Mr. Luthra, thus, argued that in the discussion and comments column of the enquiry officerâ€s report, it is incorrectly stated that there was nothing
on the record to prove that the accused Constable Hirdesh Kumar was interrogated in the presence of NCB officials. He further stated that the
enquiry officer has come to an erroneous conclusion that the investigation of the case was done in an unprofessional manner. He submitted that the
charge-sheet was filed in the trial court by the applicant only after seeking approval from his senior officers and if he has allegedly acted in an
unprofessional manner, then what about his seniors.
8. Mr. Luthra vehemently argued that in its Annexure A-2 penalty order, the disciplinary authority has noted that as per rules/instructions on the
subject the facts of arrest of an accused must be brought to the notice of SHO or supervisory Inspector and ACP immediately and the accused must
also be produced before Inspector/ ACP and a DD entry to this effect is also to be lodged in daily diary. It is further mentioned therein that the
delinquent did not make sincere efforts to collect documents of NCB godown or to corroborate pilferage of NCB godown and warehouses.
9. Mr. Luthra submitted that these allegations have not been made against the applicant in Annexure A-4 order of the disciplinary authority, nor even
in the Annexure A-5 summary of allegations issued by the enquiry officer. He, thus, argued that the applicant has been punished of allegations, which
were not part of the charge memo.
10. Per contra, Mrs. P.K. Gupta, learned counsel for respondents, by and large, repeated the averments made in the reply filed on behalf of
respondents. She stated that the applicant has exhibited lackadaisical and unprofessional approach in investigating the case and had arrested Constable
Hirdesh Kumar without proper evidence.
11. We have considered the arguments of learned counsel for the parties and have perused the pleadings.
12. It is not in dispute that the applicant had arrested Constable Hirdesh Kumar entirely on the basis of the disclosure statement of co-accused
Ramesh. It is also an admitted fact that he filed a charge-sheet in the trial court after getting it approved by his superior officers. The trial court did not
get convinced with the evidence adduced, and consequently, ordered release of Constable Hirdesh Kumar. The applicant has, thus, been charged of
conducting investigation in an unprofessional manner. In the other words, he has been proceeded against departmentally for the poor quality
investigation of the criminal case. Needless to say that if there was anything lacking in his investigation or the investigation was fraught with
infirmities, his superior officers, who cleared the charge-sheet prepared by the applicant, could have applied the required correctives. Since they
accorded their approval to the charge-sheet and only thereafter the charge-sheet was filed in the trial court, it cannot be said that the applicant was
singularly and squarely responsible for filing the alleged lackadaisical charge-sheet.
13. We also find considerable merit in the arguments of Mr. Luthra that the disciplinary authority has noted two additional allegations in its penalty
order, which were not part of the Annexure A-4 order containing the charges. For this reason, it is quite natural to infer that the Annexure A-1 order
passed by the appellate authority is also based on some extraneous considerations.
14. The enquiry officer has also concluded that the negligence and unprofessionalism on the part of the applicant towards investigation is proved on
the test of preponderance of probability of evidence. He, however, has noted that no evidence of malafide has emerged during the course of enquiry.
Hence, it is quite clear from the enquiry officerâ€s report that the applicant has not derived any undue benefits for himself in arresting and later
charge-sheeting Constable Hirdesh Kumar. Even the allegations against the applicant are not satisfactorily / conclusively proved.
15. The Honâ€ble Apex Court, defining the judicial review in disciplinary enquiry matters, has laid down the following broad principles:
(a) Principles of natural justice have not been followed in the conduct of disciplinary enquiry proceedings,
(b) Incompetent authorities have issued the charge memorandum and passed the penalty orders,
(c) The penalty orders have been passed in violation of relevant laws/rules; and
(d) The punishment inflicted is disproportionate to the offence committed.
16. The above principles have been enshrined in the following judgments of Honâ€ble Supreme Court:
(i) Union of India v. P. Gunasekaran,(2015) 2 SCC 610
(ii) Ranjit Thakur v. Union of India & others, (1987) 4 SCC 611; and
(iii) Kuldeep Singh v. Commissioner of Police & others, JT 1998 (8) SC 603.
17. As noticed hereinabove, the applicant has been punished, without any evidence, for alleged negligence and dereliction of duties. We, therefore,
hold that Annexures A-2 & A-1 orders passed by the disciplinary and appellate authorities respectively are not sustainable in the eyes of law and
accordingly they are quashed and set aside.
18. The O.A. is accordingly allowed. There shall be no order as to costs.
