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Judgment
Per: Justice Ranjit More, Chairman:
Since the pleadings in the present O.A. are complete and the issue involved therein is capable of being decided at the admission stage, with the consent of learned counsel for the respective parties, we have heard the matter at the admission stage.
The brief facts of the present O.A. are as follows:
In the year 2021, the applicant was posted as the Station House Officer (SHO) of Police Station Hauz Khas. During that period, Smt. Poonam Sharma filed an application under Section 156(3) of the Code of Criminal Procedure, 1973, seeking directions to the police for registration of an FIR against Smt. Priyanka Arora and others for offences punishable under Sections 380, 451, 506, 509 and 120-B read with Section 34 of the Indian Penal Code, 1860. The learned Metropolitan Magistrate, vide order dated 31.03.2021, allowed the said application and directed the SHO, Police Station Hauz Khas, to register an FIR within 48 hours.
The allegation against the applicant is that he failed to register the FIR within the stipulated period in compliance with the aforesaid order. Consequently, departmental proceedings were initiated against the applicant and SI (Exe.) Varun Gullaiya jointly, and a charge memorandum dated 19.05.2025 was issued to the applicant. The said charge memorandum, along with the summary of allegations dated 01.01.2025, has been impugned in the present O.A., which is filed seeking the following reliefs:
“i.Quash and set aside the charge dated 19.05.2025 at Annexure A-1.
ii.Quash and set aside the Summary of Allegations at Annexure A-2.
iii.Declare the action of the respondents in initiating the Departmental enquiry against the applicant as illegal and arbitrary and direct the respondents to Drop the Departmental Enquiry against the applicant and grant all consequential benefits to the applicant including seniority, continuity of service, pay and allowances etc.
iv.Any other relief that the Ld. Tribunal may deem fit and proper in the facts and circumstances of the case.”
Mr. Gaur, learned counsel for the applicant, submits that the learned Metropolitan Magistrate, vide order dated 31.03.2021 passed under Section 156(3) of the Cr.P.C., had directed the complainant to obtain a dasti copy of the order and serve the same upon the SHO concerned. However, the complainant did not serve a copy of the said order at Police Station Hauz Khas. He further submits that the copy of the order dated 31.03.2021 was received at Police Station Hauz Khas only on 05.04.2021. On the very same date, the accused had approached the learned Sessions Court by filing a revision petition and obtained a stay of the operation of the aforesaid order.
Mr. Gaur, learned counsel for the applicant, further submits that the stay granted by the learned Sessions Court was vacated on 05.05.2021, upon dismissal of the revision petition. Thereafter, the original accused challenged the said order before the Hon’ble High Court of Delhi, wherein notice was issued on 28.05.2021. The proceedings were ultimately disposed of vide order dated 28.09.2021. He further submits that, in the meantime, the applicant was transferred from Police Station Hauz Khas on 25.07.2021.
In nutshell, the case of the applicant is that the FIR could not have been registered in compliance with the order passed by the learned Metropolitan Magistrate under Section 156(3) of the Cr.P.C., as the operation of the said order had been stayed by the learned Sessions Court.
Ms. Ring Baliyan, learned proxy counsel for the respondents, vehemently opposes the O.A. by relying upon the counter affidavit. She submits that, pursuant to the complaint made by Smt. Poonam Sharma, an inquiry was conducted by the Vigilance Unit, Delhi Police, wherein the Inquiry Officer substantiated the allegations on the basis of the facts and evidence corroborated during the inquiry. She further submits that the Naib Court is a police official who acts as a vital link between the local police station and the court, and that it is the duty of the Naib Court to regularly visit the concerned police station and apprise the SHO of the developments in the proceedings before the trial court. She contends that the Naib Court must have apprised the applicant of the order passed by the learned Metropolitan Magistrate.
Ms. Baliyan, learned proxy counsel for the respondents, submits that the present O.A. is premature, as the applicant has challenged the charge memorandum at the initial stage of the departmental proceedings. Relying upon the decision of the Hon’ble Supreme Court in Union of India & Ors. v. Ashok Kacker, 1995 Supp (1) SCC 180, she submits that the applicant should first submit his reply to the charges and raise all his objections before the disciplinary authority, which would consider them in accordance with law. She, therefore, submits that the present O.A. deserves to be dismissed as premature.
Ms. Baliyan, learned proxy counsel for the respondents, further submits that, as held by the Hon’ble Supreme Court in Union of India v. Upendra Singh, (1994) 3 SCC 357, the Tribunal cannot examine the truth or correctness of the allegations at the stage of challenge to a charge memorandum. She submits that the allegations are required to be examined during the departmental inquiry and that the Tribunal can interfere at this stage only if the charges, even if accepted as stated, do not disclose any misconduct or are contrary to law. She, therefore, submits that no interference by this Tribunal is warranted and that the O.A. deserves to be dismissed.
Mr. Gaur, learned counsel for the applicant, in rejoinder, also relies upon paragraph 6 of the judgment of the Hon’ble Supreme Court in Upendra Singh (supra). He also places reliance upon the decision of the Hon’ble Supreme Court in State of Punjab v. V. K. Khanna & Ors., reported in (2001) 2 SCC 330, particularly paragraph 33 thereof.
We have given anxious consideration to the rival submissions advanced by learned counsel for the respective parties and have also perused the pleadings on record.
The misconduct alleged against the applicant is that, while posted as the Station House Officer (SHO), Police Station Hauz Khas, he failed to register an FIR in compliance with the order passed by the learned Metropolitan Magistrate under Section 156(3) of the Cr.P.C. It is not in dispute that the learned Metropolitan Magistrate passed the aforesaid order on 31.03.2021, directing the applicant, in his capacity as the SHO concerned, to register an FIR on the basis of the complaint within a period of 48 hours. However, what is pertinent to note is that the learned Metropolitan Magistrate also directed the complainant to obtain a dasti copy of the order and serve the same upon the applicant (SHO).
Mr. Gaur, learned counsel for the applicant, submits that the complainant never served a copy of the order dated 31.03.2021 upon the applicant. Significantly, this assertion has neither been disputed nor controverted by the respondents in their counter affidavit.
It is the specific contention of the applicant that the copy of the order dated 31.03.2021 passed by the learned Metropolitan Magistrate was received at Police Station Hauz Khas only on 05.04.2021 and before that it was not received through any other mode. In support of this contention, Mr. Gaur, learned counsel for the applicant, relies upon the statement of PW-8, annexed to the pleadings.
A perusal of the statement of PW-8, ASI (Exe.) Jitender Singh, indicates that the copy of the order dated 31.03.2021 passed by the learned Metropolitan Magistrate was received at Police Station Hauz Khas by post on 05.04.2021.
In the meantime, the order dated 31.03.2021 passed by the learned Metropolitan Magistrate was challenged by the accused by filing Criminal Revision Application No. 118/2021. On 05.04.2021, the learned Additional Sessions Judge stayed the operation of the said order. Significantly, the stay was granted on the very same day on which the copy of the order of the learned Metropolitan Magistrate was received at Police Station Hauz Khas. The Criminal Revision Application No. 118/2021 was ultimately dismissed by the learned Additional Sessions Judge vide order dated 05.05.2021. Thereafter, the accused approached the Hon’ble High Court of Delhi by filing Criminal M.A. No. 1363/2021. The learned Single Judge of the Hon’ble High Court, vide order dated 28.05.2021, issued notice to the original complainant.
In the meantime, the complainant filed Criminal M.A. No. 1427/2021 in the pending proceedings before the Hon’ble High Court, seeking clarification regarding the operation of the order dated 28.05.2021 and an early hearing of the matter.
The Hon’ble High Court, vide order dated 28.09.2021, considered the complainant’s request for clarification and observed that the order dated 28.05.2021 was clear and that no clarification was required at that stage regarding the existence of any stay on the proceedings before the learned Metropolitan Magistrate.
Subsequently, vide order dated 19.10.2021, the learned Metropolitan Magistrate noted that no stay was operating against the proceedings and observed that the SHO was required to comply with the order dated 31.03.2021 directing registration of the FIR.
It is also relevant to note that the applicant was transferred from Police Station Hauz Khas to another police station on 25.07.2021. The FIR in compliance with the order passed by the learned Metropolitan Magistrate was eventually registered by the applicant’s successor on 11.10.2023.
The aforesaid sequence of events assumes significance. The copy of the order dated 31.03.2021 passed by the learned Metropolitan Magistrate was received at Police Station Hauz Khas only on 05.04.2021, on which very date the learned Additional Sessions Judge stayed its operation. The applicant continued to be posted at Police Station Hauz Khas until 25.07.2021. Although the revision petition was dismissed on 05.05.2021, the proceedings thereafter continued before the Hon’ble High Court, which clarified on 28.09.2021 that no stay had been granted by it. Thus, by the time the said clarification was issued, the applicant had already been transferred from Police Station Hauz Khas.
In view of the aforesaid facts and circumstances, we are of the considered opinion that the applicant cannot be faulted for not registering the FIR during the period in question. The operation of the order directing registration of the FIR had been stayed by the learned Additional Sessions Judge on the very day the order was received at Police Station Hauz Khas. In these circumstances, registration of the FIR while the stay was in operation would have been contrary to the subsisting judicial order. We, therefore, find no misconduct attributable to the applicant on the basis of the allegations levelled against him in the impugned charge memorandum.
We have also considered the submissions advanced by the learned proxy counsel for the respondents. The first submission is that the departmental proceedings were initiated pursuant to a vigilance inquiry, however, the mere fact that the allegations were examined during a vigilance inquiry does not, by itself, establish misconduct on the part of the applicant. In view of the findings recorded hereinabove, this contention does not advance the respondents’ case. The second submission is that the Naib Court must have apprised the applicant of the order passed by the learned Metropolitan Magistrate. This submission is also not borne out by the material placed on record and is based on mere conjectures and surmises. There is nothing on record to establish that the Naib Court had, in fact, informed the applicant of the said order. On the contrary, evidence in form of the statement of PW-8 indicates that the copy of the order dated 31.03.2021 was received at Police Station Hauz Khas by post only on 05.04.2021.
Before proceeding further, it would be appropriate to consider the legal principles governing judicial interference with a charge memorandum at the threshold. In Upendra Singh, (supra), the Hon’ble Supreme Court made the following observations in paragraph 6:
“6.In the case of charges framed in a disciplinary inquiry the tribunal or court can interfere only if on the charges framed (read with imputation or particulars of the charges, if any) no misconduct or other irregularity alleged can be said to have been made out or the charges framed are contrary to any law. At this stage, the tribunal has no jurisdiction to go into the correctness or truth of the charges. The tribunal cannot take over the functions of the disciplinary authority. The truth or otherwise of the charges is a matter for the disciplinary authority to go into. Indeed, even after the conclusion of the disciplinary proceedings, if the matter comes to court or tribunal, they have no jurisdiction to look into the truth of the charges or into the correctness of the findings recorded by the disciplinary authority or the appellate authority as the case may be. The function of the court/tribunal is one of judicial review, the parameters of which are repeatedly laid down by this Court. It would be sufficient to quote the decision in H.B. Gandhi, Excise and Taxation Officer-cum- Assessing Authority, Kamal v. Gopi Nath & Sons5. The Bench comprising M.N. Venkatachaliah, J. (as he then was) and A.M. Ahmadi, J., affirmed the principle thus : (SCC p. 317, para 8)
"Judicial review, it is trite, is not directed against the decision but is confined to the decision-making process. Judicial review cannot extend to the examination of the correctness or reasonableness of a decision as a matter of fact. The purpose of judicial review is to ensure that the individual receives fair treatment and not to ensure that the authority after according fair treatment reaches, on a matter which it is authorized by law to decide, a conclusion which is correct in the eyes of the Court. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. It will be erroneous to think that the Court sits in judgment not only on the correctness of the decision making process but also on the correctness of the decision itself."
The aforesaid judgment makes it abundantly clear that, while exercising judicial review at the stage of challenge to a charge memorandum, the Tribunal is required to examine whether the allegations levelled against the applicant, even if accepted as true, disclose any misconduct or irregularity warranting disciplinary action. Such examination, however, must be distinguished from an appreciation of the evidence for the purpose of determining the truth or otherwise of the allegations, which ordinarily falls within the domain of the disciplinary authority and the inquiry proceedings. The scope of judicial review at this stage is, therefore, confined to examining the legal sustainability of the charges and does not extend to adjudicating upon the merits of the disputed facts.
The respondents have also relied upon the judgment of the Hon’ble Supreme Court in Ashok Kacker (supra) to contend that the present O.A. is premature. The said decision reiterates that a charge memorandum should not ordinarily be interfered with at an interlocutory stage, particularly where the employee has not yet submitted a reply and has approached the Tribunal merely on the apprehension of disciplinary action. However, the question whether interference is warranted in the present case must be considered in the light of the nature of the allegations contained in the impugned charge memorandum and the principles laid down in Upendra Singh (supra).
Mr. Gaur, learned counsel for the applicant, has also placed reliance upon paragraph 33 of the judgment of the Hon’ble Supreme Court in V.K. Khanna (supra), which reads as follows:
“While it is true that justifiability of the charges at this stage of initiating a disciplinary proceeding cannot possibly be delved into by any court pending inquiry but it is equally well settled that in the event there is an element of malce or malafide, motive involved in the matter of issue of a charge-sheet or the concerned authority is so biased that the inquiry would be a mere farcical show and the conclusions are well known then and in that event law courts are otherwise justified in interfering at the earliest stage so as to avoid the harassment and humiliation of a public official. It is not a question of shielding any misdeed that the Court would be anxious, it is the due process of law which should permeate in the society and in the event of there being any affectation of such process of law that law courts ought to rise up to the occasion and the High Court in the contextual facts has delved into the issue on that score. On the basis of the findings no exception can be taken and that has been the precise reason as to why this Court dealt with the issue in so great a detail so as to examine the judicial propriety at this stage of the proceedings.”
In the said judgment, the Hon’ble Supreme Court recognized that, although the merits of charges ordinarily cannot be examined at the stage of initiation of disciplinary proceedings, judicial interference may be warranted where the initiation of proceedings is vitiated by mala fides or bias, or where the inquiry would otherwise be rendered only an empty formality. The said decision, therefore, emphasizes that the permissibility of interference depends upon the facts and circumstances of each case and the grounds on which the charge memorandum is challenged.
Applying the aforesaid principles to the facts of the present case, it is evident from the material discussed hereinabove that the copy of the order dated 31.03.2021 passed by the learned Metropolitan Magistrate was received at Police Station Hauz Khas on 05.04.2021, on which very date the learned Additional Sessions Judge granted an interim stay to its operation. The revision petition was dismissed on 05.05.2021. Meanwhile, the applicant was transferred from Police Station Hauz Khas on 25.07.2021. The subsequent proceedings before the Hon’ble High Court culminated in the order dated 28.09.2021, by which the Hon’ble High Court observed that the order dated 28.05.2021 was clear and that no clarification was required at that stage. The learned Metropolitan Magistrate thereafter passed an order dated 19.10.2021 recording that no stay was operating against the proceedings.
It is also significant that the complainant had not served a copy of the order dated 31.03.2021 upon the applicant, as specifically directed by the learned Metropolitan Magistrate. This assertion has not been controverted by the respondents in their counter affidavit. Further, the statement of PW-8 indicates that the order was received at Police Station Hauz Khas by post only on 05.04.2021. The contention that the Naib Court must have informed the applicant of the order is not supported by any material establishing that such intimation was, in fact, given to him.
In the aforesaid circumstances, the question is whether the allegations forming the basis of the impugned charge memorandum disclose misconduct attributable to the applicant, having regard to the sequence of judicial orders and the period during which he remained posted as SHO, Police Station Hauz Khas. In the facts of the present case, the order directing registration of the FIR was stayed on the very day its copy was received at the police station. The applicant had been transferred from the said Police Station before the receipt of the subsequent clarification by the Hon’ble High Court and, therefore, could not have been expected to register the said FIR pursuant thereto.
Having regard to the aforesaid circumstances and the material placed on record, we are of the considered opinion that the allegations against the applicant, as framed in the impugned charge memorandum and the accompanying summary of allegations, do not disclose any misconduct on his part, warranting continuation of the departmental proceedings.
Accordingly, the O.A. is allowed with the following directions:
The charge memorandum dated 19.05.2025 and the summary of allegations dated 01.01.2025 are quashed and set aside.
The respondents are directed to drop the departmental proceedings initiated against the applicant. Consequential benefits, if any, admissible under the applicable rules, shall be granted to the applicant within three (3) weeks from the date of receipt of a copy of this order, keeping in view his impending retirement.
Registry is directed to forward a copy of this order to Respondent No. 1 for immediate compliance.
Pending M.As., if any, shall also stand disposed of.
There shall be no order as to costs.