Pramodh Kumar vs Commissioner Of Police, Delhi & Ors.

“i)

To call for records of the case for just and fair adjudication of the case.

ii) To quash and set aside the impugned suspension order No. 3389-3405/HAP(P-I)/East district dated 30.07.2019 of D.C.P./East district, Delhi (Annexure-A1) & impugned reinstatement order No. 5504-16/HAP(P-I)/East district dated 15.11.2019 (Annexure-A2) being illegal, irrational, malafide and invalid.

iii) To quash and set aside the order of censure issued by DCP/3d Bn.DAP, Vikaspuri, Delhi, vide impugned order No. 2068-82/HAP(P-III)/3rd Bn.DAP dated 31.03.2021 of D.C.P, 3d Bn.DAP, Delhi (Annexure-A3) & the impugned appeal order No. 1852-55/P.Sec./Addl.C.P./AP-I, Delhi, dated 09.12.2021 of Addl.C.P/AP-I (Annexure-A4) being illegal, irrational, in violation of principles of natural justice, supersession of statutory rules and malafide.

iv) To quash and set aside the order of major punishment of forfeiture of one year of approved service temporarily for a period of one year entailing proportionate reduction in pay and suspension period from 29.07.2019 to 14.11.2019 decided as period "not spent on duty issued by DCP/3rd Bn.DAP, Vikaspuri, Delhi, vide Impugned order No. 4192-4212/HAP(P-II)/3rd Bn.DAP dated 12.07.2021 of D.C.P, 3rd Bn.DAP, Delhi (Annexure-A5) & the impugned appeal order No. 354-59/P.Sec/Joint CP/AP-II dated 12.04.2022 of Jt.C.P./AP-II (Annexure-A6) being arbitrary, unreasonable, in violation of principles of natural justice, supersession of statutory rules, and malafide, and to further direct the respondents that the forfeited duration of service along with pay scale and increment be restored as it was never forfeited withall consequential benefits including service seniority & and pay & allowances and also for any other purpose relating to the service.

iv) To issue direction /order for taking appropriate departmental action against the respondents who discharged their quasi-judicial functions with malafide intentions causing 'tremendous harassment and 'immeasurable anguish' to the applicant.

vii) Direct to produce action taken report along with records of the case from respondent No.1 w.r.t. representation for redressal of grievances and subsequent reminders thereof via Annexure A-9, A-12, A-13, A-16 for perusal by this hon'ble tribunal.

viii) Award cost of the proceedings and impose suitable costs on the respondents to recompense for the injury suffered by the applicant.

ix) To pass such other and further orders as deemed fit and proper in the interest of justice.

x)

To allow the O.A.”

“Brief-facts of the case are that a departmental enquiry was initiated against SI (Exe.) Pramodh Kumar, No. D/5326 (PIS No. 16140335) (here-in-after called the appellant) vide order No. 5380-98/HAP(P-I)/East District, dated 13.11.2019 on the allegations that while posted at PS Mayur Vihar, he had not finalized pending investigation cases even after providing sufficient opportunities to do the same in review of pending investigation cases. Instead of giving satisfactory reason for delay, the delinquent SI replied advertently and in undisciplined manner. During scrutiny of 2 his pending investigation case files, several shortcomings were noticed which he has done either intentionally or due to unwarranted reasons best known to him. The following shortcomings were noticed by ACP/Mayur Vihar:-

1.

Instructions of worthy Joint CP/ER to IO, in case FIR No. 142/2019 u/s 419/420/468/471/120--B IPC on 11.07.2019 have not been complied with.

2.

Sl (Exe.) Pramodh Kumar, No. D/5326 has prepared charge sheet in case FIR No. 142/2017 u/s 363/366/364/354-A/506/509 IPC read with 10/12/21 POCSO Act after keeping co-accused Gulfam (as alleged by victim) in column No. 12 instead of column No. 11 in spite of objections by Prosecution Branch and statement of victim u/s 164 Cr.P.C. The same charge sheet was found removed from case file too.

3.

SI (Exe.) Pramodh Kumar, No. D/5326 has prepared cancellation report in case FIR No. 31/2019 u/s 420/406 IPC without verifying documents and mode of transaction of cash with complainant.

4.

Despite having knowledge of original minutes register is already under police possession, he again raised misdirected queries in case FIR No. 165/2017 u/s 468/471/120--B IPC to school authorities to unnecessarily linger on with the investigation.

5.

He had submitted 29 case files to MHC(R)/PS Mayur Vihar on 29.07.2019 but on 31.07.2019, he has taken back 03 case files of FIR No. 142/2017 142/2019 and 178/2019 from record room.

6.

No case diaries were found attached with case FIR No. 178/2019 and 142/2019.”

“It is stated that at present I am posted as SDPO/Seelampur North East District and prior to my posting of here, I was posted as SDPO/Mayur Vihar. On 29/07/19, I had called SI Pramod Kumar with SHO/Mayur vihar and Insp/Inv/Maayur Vihar with case file 165/17 along with the complainant Mr. V.B. Rai. SI Pramod was asked to explain the reason for keeping it pending and as to why he has even after his repeatedly directed from the undersigned to expedite the investigation of this case and to get the signatures verified from F.S.L.; has ignored the same and has misplaced queries from school Management and as to why he was demanding such documents which were either already in police possession or were not even remotely associated with the investigation. SI Pramod, inspite of giving reply in a proper/logical way, replied in an adversary and undisciplined manner and completely refused to follow the legal directions of undersigned in presence of SHO & Insp.

Thereafter all the developments were brought in the knowledge of senior officers and he was placed under suspension on 29/07/19. Thereafter a misconduct report was sent to DCP/East District on 01/08/19 in which the worthy DCP ordered for Departmental Enquiry of SI Pramod. In the misconduct report, I had elaborated the shortcomings/discrepancies of case FIRs 142/17, 165/17, 142/19, 178/19 and 31/15. As in case FIR No - 31/15, when he had brought to undersigned, he had prepared a cancellation report which was also corroborated in case diary. but when the same case file was perused during the preparation of misconduct report, the cancellation report was missing; but the C.D wherein he had written that cancellation report has been found prepared. Moreover it is pertinent to mention that he had prepared cancellation report before his suspension even without verifying the receipt of transaction. At the time of preparation of misconduct report, the MHC(R) informed me that SI Pramod had taken these case files 142/17, 142/15 and 178/19 on 31/07/19 for some hours and thereafter he returned them back. The shortcomings noticed in these three case files have been elaborated in my misconduct report. Moreover in 142/19, even after the directions of worthy Jt.C.P/E.R, he did not take adequate investigation, as a result the case was kept pending and the senior citizen couple were running pillar to post get their cheated money back which happened to be their lifetime saving and the money was urgently required by the elderly couple for medical treatment. Also in 142/17, he had made the accused specifically pointed in statement u/s 164 by the prosecutrix as main accused, in column no-12 even after the repeated directions. It is pertinent to mention therein that 142/17 is one of the case files in which he specifically mention in the C.D, Also FIR No 142/19, 178/19, no C.D was found at the time of preparation of the misconduct report. My misconduct report dated 01.08.2019 was shown to me in the D.E file which bears PW-9A. This is my true statement.”

“11.

As such, the ground on which the suspension was extended on the second period of 90 days and the third period of 90 days was erroneous, as there were no disciplinary proceedings pending against the petitioner at that point of time.

12.

Though Mr. Haseeb submits that the original ground on which the petitioner had been placed under suspension, which was that

13.

Even if this was an inadvertent error, the petitioner is entitled to the benefit thereof. The legality of any executive action is to be tested on the reasons adduced therefor. This has been the law since Commissioner of Police v Gordhandas Bhanji, as cited in the following famous passage from Mohinder Singh Gill v Chief Election Commissioner":

"8.

The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J. in Gordhandas Bhanji:

"Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself."

14.

As such, solely on the ground that first and second extensions of

6. ANALYSIS :

“5.

He had submitted 29 case files to MHC (R)/PS Mayur Vihar on 29.07.2019 but on 31.07.2019, he has taken back 03 case files of FIR No. 142/2017, 142/2019 and 178/2019 from record room.

6.

No case diaries were found attached with case FIR No. 178/2019 and 142/2019.

…..

……The delinquent SI did not admit the allegations and preferred to defend his DE himself. The Enquiry Officer proceeded further and examined 08 PWs in the presence of delinquent SI by giving him opportunity to cross examine the PWs, which the delinquent SI availed. Further, statement of PW-09 was recorded in the presence of delinquent SI, but opportunity to cross examine the said PW was deferred. Thereafter, the delinquent SI was transferred from this Battalion

The undersigned has carefully gone through the entire DE file containing deposition of PWs, Exhibits, defense statement of the delinquent as well as findings of the E.O. Tentatively, I do not agree with the conclusion drawn by the E.O. in his findings for the reasons that the Enquiry Officer has not paid any heed to the allegations that delinquent SI (Exe.) had submitted 29 case files to MHC(R)/PS Mayur Vihar on 29.07.2019 but on 31.07.2019, he has taken back 03 case files of FIR No. 142/2017, 142/2019 and 178/2019 from record room, whereas he was already placed under suspension on 29.07.2019.

From the above facts, it is revealed that the EO has left the lacunae in his findings and failed to bring home the quilt of delinquent SI, who took back 03--case-files-of FIR No. 142/2017, 142/2019 and 178/2019 from record room, whereas he was under suspension, which is a clear violation of Rule 26 (3) (1) of Delhi Police (Punishment & Appeal) Rules-1980 as well as standing instructions contained in S.O. 128/08.

Delinquent SI (Exe.) Pramodh Kumar, No. D/5326 (PIS No. 16140335) was placed under suspension with effect from 29.07.2019 vide order No. 3389-3405/HAP(P-I)/East District, dated 30.07.2019. Later on, he was re-instated from suspension with immediate effect vide order No. 5504-16/HAP(P-I)/East District, dated 15.11.2019. He is also called upon to show cause

“The aforesaid observations in the inquiry report would indicate that it was not a case where there was inaction on the part of the appellant in controlling the riots. Arrests were made, lathi-charge was done and firing was resorted to, though not to injure. Considering the limited force available, focus was on saving crucial installations and potential targets. The immediate senior of the appellant D L Kashyap, who appeared as a defence witness, stated that the appellant did a commendable job with the limited resources available with him. Importantly, this witness was also part of the team responsible for controlling riots but was not charge-sheeted. Therefore, the Inquiry Officer relied on his statement. Most importantly, there was no evidence to show that the force was sitting idle.

25.

In the context of the detailed inquiry report, the disagreement note is cryptic and ignores vital aspects that were considered by the Inquiry Officer in his report, such as, (a) force was limited; (b) focus was on saving critical installations and potential targets; (c) firing was resorted to, though not to injure; (d) DW-1, Charged Officer’s immediate senior applauded the work of the Charged Officer under the circumstances; and (e) 106 arrests were effected as borne out from hand written notes extracted from daily diaries.

26.

Interestingly, the Disciplinary Authority in his disagreement note laid emphasis on what was not done, or what could have been done, namely, (a) entries were not made in the relevant diaries regarding announcement of prohibitory order; (b) no tear gas shells were used; (c) no injury caused to anyone in lathi-charge or police firing; (d) additional force not properly deployed; and (e) no preventive arrests effected between 31.10.1984 and 01.11.1984.

27.

As regards observation of not making entries in relevant diaries regarding announcement of prohibitory orders, the statement of imputation in the context of that charge (i.e., charge no.3) makes no such allegation on the Charged Officer. Had there been a specific charge there could have been an explanation. May be such entries are made by different set of employees posted at the police station. Be that as it may, in absence of a specific imputation in respect of not making entries of public announcement of prohibitory orders in the diaries, in our view, adverse inference ought not to have been drawn against the appellant on that count, as the same would be beyond the scope of the charge (i.e, charge no.3) when read in conjunction with the statement of imputation.

28.

Regarding non-use of tear gas shells, first there ought to have been evidence that they were available for use. Dissent note does not indicate presence of evidence in that regard. Therefore, in our view, dissent on that count is not warranted.

29.

Absence of gunshot injury to any of the rioters, in our view, is not a ground to assume inaction on the part of the police force. Firing at mob has dangerous consequences. If shots are fired in air to disperse the crowd, the purpose stands served. Whereas firing at the crowd may not only injure the persons targeted but also several others who may be innocent. It is a matter of common knowledge that rifle bullets travel at a high velocity and may pierce the targeted person to strike unintended targets as well. Therefore, the plea of the Charged Officer that shots were fired not with a view to injure but to disperse the mob, in our view, is a bona fide plea, which does not call for any adverse inference against him.

30.

Regarding deployment of additional force, there is no evidence that such number of police personnel were to be deployed here and such number were to be deployed there. Inquiry Officer has observed that there was complete lack of evidence that police force was sitting idle and were not deployed. Importantly, the defence plea is that deployment of forces were at important Government installations and at potential targets. Considering the scale at which riots broke out it is difficult to assume that with limited resources, as is found in the inquiry report, deployment of forces could be across the entire area under the command of the concerned police station. Therefore, in our view, dissent on this count also is unwarranted, particularly, in absence of evidence that police force was sitting idle with no deployment orders.

31.

As regards allegation that no preventive arrests were made by the Charged Officer, suffice it to say that it is an allegation easy to make but difficult to prove. There is no evidence cited in the disagreement note that reports of a plan to indulge in rioting came to the knowledge of the Charged Officer but he took no preventive action. Admittedly, riots broke out suddenly as soon as information of assassination of the then Prime Minister spread. Thus, absence of preventive arrest is not a ground to believe that there was inaction on the part of the Charged Officer. Notably, as per observations in the inquiry report, arrests were effected. May not be by way of preventive measure but as a response to rioting.

32.

Besides above, we note that the disciplinary proceeding against the appellant was initiated after 8 years of the incident when by that time the appellant had already earned his promotion. We are conscious of the law that promotion does not automatically wipe out any misconduct of a delinquent employee, particularly when it comes to light later. Here also, police personnel were put in the dock when a Committee, appointed later, reported laxity on the part of police in handling 1984 Riots. No doubt, misconduct may arise out of an act or an omission. Where it relates to an alleged omission, greater caution is required before putting an officer in the dock. In case of such nature, the disciplinary authority may also have to empathise with the situation in which the charged officer was placed at the relevant time. Because in hindsight it is easy to say that things could have been handled better if they had been done this way, or that way. But if this alone is taken as a basis to punish police personnel who, though may not have delivered the desired result, have done their best, commensurate to the resources available to them at the relevant time, grave injustice would be done. Instant case appears to be of that kind.

33.

For all the reasons above, we are of the considered view that it would be too harsh upon the appellant to undergo a fresh exercise of disagreement note and consequential process, particularly when the incident is over 40 years old and the appellant has demitted office long time back.

34.

The appeal is, therefore, allowed. The order of the High Court giving liberty to the disciplinary authority to issue a fresh disagreement note, and proceed accordingly, is set aside. The writ petition of the appellant stands allowed. The order of the High Court to the extent it quashed the order of punishment is affirmed. The appellant shall be entitled to all consequential benefits including revision of pension, if any payable, accordingly.”

“42.

In the present case, the language employed in the disagreement note leaves little doubt that the Disciplinary Authority had already formed a conclusive opinion on the petitioner’s guilt. The note recorded that the Inquiry Officer relied on only the contentions of the petitioner and ignored all the documentary evidence in spite of “substantiated misdemeanor on part of the C.O.”, a phrase that clearly conveys finality rather than tentativeness. Such pre-judgment renders the subsequent consideration of the petitioner’s representation an empty formality. The process, therefore, stands vitiated for non-compliance with the mandatory procedural safeguard embodied in Rule 15(2).

43.

The decision of this Court in Rajpal Singh (supra); Satish Pal Singh (supra) and Sunil Kumar (supra), have consistently held that a disagreement note which embodies a final conclusion rather than a tentative view vitiates the disciplinary process, violates the principles of fair hearing.

44.

The penalty imposed upon the petitioner, that is, reduction of pay by two stages for three years, with denial of increments and consequential effect on future progression, is manifestly disproportionate to the alleged misconduct. The allegations do not involve moral turpitude, corruption, financial irregularity, or any act prejudicial to the integrity of service. They stem entirely from the petitioner’s effort to avail CCL for her minor daughters. The punishment, therefore, shocks the conscience of this Court and fails the test of proportionality as reiterated in Amandeep (supra).

45.

Additionally, we also find merit in the submission of the learned counsel for the petitioner that the period of absence from 11.03.2014 to 08.08.2014 having been regularized as EOL, could not have then been made a subject of departmental proceedings. The same would not be in consonance with the dicta of Bakshish Singh (supra).

46.

In view of the above discussion, this Court finds that the disciplinary proceedings against the petitioner suffered from procedural irregularities and substantive infirmities.

47.

Accordingly, the Impugned penalty order dated 23.09.2019, as well as the Impugned order dated 31.10.2019 passed by the learned Tribunal are set aside. The respondent is directed to restore the petitioner’s pay and consequential service benefits within a period of eight weeks from the date of this Order.

48.

The writ petition is accordingly, allowed. The pending application is disposed of.”

“The undersigned is directed to say that rule 15(2) of the Central Civil Services (Classification, Control and & Appeal) Rules, 1965 states that 'The Disciplinary Authority shall forward or cause to be forwarded a copy of the report of the inquiry, if any, held by Disciplinary Authority or where the Disciplinary Authority is not the Inquiring Authority, a copy of the report of the lnquiring Authority together with its own tentative reasons for disagreement, if any, with the findings of Inquiry Authority on any article of charge to the Government Servant who shall be required to submit, if he so desires, his written representation or submission to the Disciplinary Authority within fifteen days, irrespective of whether the report is favourable or not, to the Government Servant.

2.

The necessity of following the aforementioned rule 15(2) both in letter and spirit is reiterated. The communication forwarding the IO's report alongwith the tentative reasons for disagreement, if any, seeking comments/representation of the Charged officer should reflect this position. All Ministries/Departments are, therefore, requested to ensure that the communication forwarding 'the IO's report etc. does not contain phrases such as 'Article of charge is fully proved' or 'Article of charge is fully substantiated' which could be construed to mean that the disciplinary authority is biased even before considering the representation of the charged officer and this would be against the letter and spirit of the CCS (CCA) Rules, 1965.

3.

Ministry of Finance etc. may bring the contents of the above OM to the notice of all concerned.”

7. CONCLUSION :