Pratap Singh vs Union Of India & Ors.
2011 Latest Caselaw 999 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P. (Civil) No.18511 of 2004

%                         Date of Decision: 21.02.2011

Pratap Singh                                               .... Petitioner

                      Through      Mr.R.S.Rana & Pt.Sama Singh,
                                   Advocates.

                                Versus

Union of India & Ors.                                     .... Respondents

                      Through     Mr.Keshav Dayal, Sr.Advocate with
                                  Mr.Anurag Kasana, Advocate for
                                  respondent No.1.

                                  Mr.V.K.Tandon, Mr.Manish Chauhan
                                  & Mr.Sanjay Singh, Advocates for
                                  respondent Nos.3 to 5.

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MS. JUSTICE VEENA BIRBAL

1.     Whether reporters of Local papers may be                YES
       allowed to see the judgment?
2.     To be referred to the reporter or not?                     NO
3.     Whether the judgment should be reported in                 NO
       the Digest?


ANIL KUMAR, J.

*

1. The petitioner who had been an Assistant Commissioner of Police

and who superannuated on 30th June, 1997 has challenged the order

dated 10th February, 2004 passed by the Central Administrative

Tribunal, Principal Bench, New Delhi in O.A.No.1855 of 2003, titled as

„Sh.Pratap Singh v. Union of India & Ors.‟ upholding the punishment

imposed on the petitioner by order dated 21st May, 2003 of 50% cut in

his pension on permanent basis and forfeiture of 50% of his admissible

gratuity.

2. Brief facts to comprehend the controversies are that the petitioner

while working as SHO Police Station Subzi Mandi during August, 1980

had committed gross misconduct as he failed to take timely action in

respect of the illegal detention of Sh.Laxman Singh @ Hanuman S/o Sh.

Hubba Singh by the police personnel at the Police Post, Andha Mughal

under the jurisdiction of his Police Station, although the illegal

detention was in his knowledge. The said person Sh.Laxman Singh @

Hanuman died in police custody and the petitioner in order to cover up

the lapses of the police personnel was also instrumental in showing it

as a case of suicide and consequently, he showed lack of devotion to

duty and indulged in conduct that was unbecoming a Government

servant and thereby violated the provisions of Rule 3 of CCS (Conduct)

Rules, 1964. The petitioner was therefore, served with a charge sheet

and he was asked to submit his reply.

3. The petitioner denied the charges made against him and

consequently, an enquiry was conducted. In his report, the enquiry

officer held that the charge related to lack of devotion to duty was

substantially established though to a degree less than that of his Police

Post Incharge, who was primarily responsible in the said case, where

the deceased had died under the police custody.

4. The Disciplinary Authority however, disagreed with the findings of

the enquiry officer. The note of disagreement was served on the

petitioner. Reply by the petitioner was considered and thereafter the

Disciplinary Authority after obtaining the advice of the UPSC and after

considering the same came to the conclusion that the misconduct

attributable to the petitioner was of a grave nature and therefore,

penalty of 50% cut in his pension on permanent basis and forfeiture of

50% of his admissible gratuity was imposed by order dated 21st May,

2003.

5. On account of the custodial death of Sh.Laxman Singh @

Hanuman, an F.I.R. No.764 of 1980, PS Subzi Mandi, was also

registered under Section 307 of IPC, which was converted into Section

302 of IPC on his death. Permission under Section 197 of the Criminal

Procedure Code was sought for prosecution against the petitioner, and

the than SI Ram Kishan, which was however, declined on the ground

that there was no evidence against them. After the investigation, the

challan was filed and the name of the petitioner was put in Column-II of

the charge sheet framed under Section 173 of the Criminal Procedure

Code. The other police personnel who were responsible for the custodial

death of Sh.Laxman Singh @ Hanuman were convicted of offence under

Section 302 read with Section 34 of IPC. While convicting the other

police personnel, the Additional Sessions Judge in para 21 of the

judgment had indicted the petitioner. The observations made in para 21

of the Judgment are as under:

"Lastly I cannot exercise any constraints in saying that the role of SHO concerned police station, the Chauki In charge and the persons who had recorded the mentioned daily diary has remained quite disgusting and highly unfair."

6. Subsequently a joint departmental proceeding was initiated

against SI Ram Kishan, HC Ram Dhari and Ex HC Ram Niwas,

and on conclusion of the proceedings the Disciplinary Authority

was pleased to award punishment against all the three defaulters.

Departmental Enquiry under Rule 14 of the CCS(CCA) Rules 1965

was also concluded against the petitioner. During the pendency of

the enquiry proceedings, the petitioner had reached the age of

superannuation on 30th June, 1997 and therefore, the said

proceedings continued under Rule 9(2) (a) of the C.C.S (Pension )

Rules 1972. Provisional pension was sanctioned to the petitioner

vide Order dated PAO-II/Pen/14(6)/97/3917. After the

punishment order dated 21st May, 2003 was passed, a copy of the

same was supplied to the petitioner on 11th June, 2003. On 26th

July, 2003 a copy of the advice of UPSC was also given to the

petitioner.

7. The punishment imposed on the petitioner was challenged

by him by filing an original application being O.A.No.1855 of 2003,

titled as „Sh.Pratap Singh v. Union of India & Ors.‟, which has

been dismissed by order dated 10th February, 2004 which is

challenged by the petitioner inter-alia on the following grounds

that the Chief Secretary could not be the Disciplinary Authority as

under the relevant rules, it is the Additional Commissioner of

Police who would be the Disciplinary Authority of an Inspector in

police and that the order dated 21st May, 2003 was passed in

violation of the proviso (b)(ii) of Sub Rule (2) of Rule 9 of CCS

(Pension) Rules. According to the petitioner, a departmental

enquiry initiated before retirement must come to an end on

retirement. It was also urged that no resort can be taken to Rule 9

(2) of CCS (Pension) Rules, which is applicable to the departmental

proceedings involving misappropriation of Government money or

material or any other misconduct associated with

misappropriation of such money or store. According to the

petitioner, the said provision cannot be made applicable to all

departmental enquiries involving misconduct of other nature. The

petitioner also asserted that since no criminal action was taken

against him except including his name in Column-II, therefore, in

the facts and circumstances, no punishment could have been

imposed upon him. It is also asserted that since the petitioner was

promoted from the rank of Inspector to Assistant Commissioner of

Police, therefore, there is a semblance of condonation of his

misconduct and in the circumstances, the punishment awarded

could not be imposed and in any case it is disproportionate to his

alleged misconduct.

8. The petitioner further submitted that his case is of no

evidence as out of 14 prosecution witnesses, the enquiry officer

had examined only 5 witnesses and no reasons have been

disclosed for not examining the other witnesses. It is contended

that the incident of the death of Sh.Laxman Singh @ Hanuman

had taken place in Quarter No.4 of erstwhile Police Post, Andha

Mughal, which was situated at a distance of about 4 km. from the

police station Subzi Mandi and the accused Head Constable and

Constable were under the control of SI Ram Kishan, the then In

charge of Police Post, Andha Mughal, therefore, penalty awarded to

the petitioner is misconceived.

9. The petition was contested by the respondents contending

inter-alia, that the petitioner was appointed to the Ex-cadre post of

Assistant Commissioner of Police by Lieutenant Governor, Delhi on

officiating basis w.e.f. 27th May, 1986 and he continued in that

capacity till regular appointment to Grade-II of the erstwhile Delhi

and Andaman & Nicobar Islands Police Service (DANIPS) w.e.f. 6th

April, 1992. In terms of Rule 14 (4) of the Delhi Police (Punishment

& Appeal) Rules, 1980 read with entry at serial No.29 of Part-II of

the Schedule of CCS(CCA) Rules, 1965, the Chief Secretary,

Government of NCT of Delhi was competent to institute the

departmental proceedings against the applicant under Rule 14 of

the said Rules. As per rule 14(4) of the Delhi Police (Punishment &

Appeal) Rules, 1980 the disciplinary action is to be initiated by the

competent authority under whose disciplinary control the police

officer concerned is working at the time it is decided to initiate

disciplinary action and not at the time of misconduct committed

by delinquent. The petitioner was proceeded under Rule 14 of the

CCS(CCA) Rules, 1965 by Memorandum No.F.7/46/95/DOV/

3138 dated 23rd May, 1997. Hence under Rule 14 (4) of the DP(P&

A) Rules the competent authority to initiate the disciplinary

proceedings was the Chief Secretary, as at the time the petitioner

was serving in the Delhi Administration

10. The respondents also contended that the deceased

Sh.Laxman Singh @ Hanuman who had expired on 6th August,

1980, but who had given a dying declaration before his death, had

revealed that on the night of 1st August, 1980 he was lifted by a

police team consisting of Constables Om Prakash, Vijay Singh and

Tyagi from the Railway Station, Subzi Mandi and taken to the

Police Post, Andha Mughal where he was tortured in order to

extract information about some stolen property. On 5th August,

1980 when he was taking meals at the police station, police

personnel poured kerosene oil on him from the stove lying nearby

and set him on fire. The deceased, Sh.Laxman Singh @ Hanuman

was in illegal detention till 5th August, 1980 and the illegal

detention was in the knowledge of Inspector Sh.Pratap

Singh/petitioner as Sh.Jagdish Tytler, the then Member of

Parliament had phoned him regarding the release of the deceased

and the parents of deceased Sh.Laxman Singh had also met the

petitioner with a petition on 4th August, 1980 which was marked

by him to the Police Post In charge, Andha Mughal, however, he

failed to take any timely action against the illegal detention.

Emphasis was also laid on the registration of the false FIR

No.763/80, under Section 309 of IPC to save the police personnel

responsible for setting Sh.Laxman Singh @ Hanuman on fire and

thus, the petitioner indulged in shielding the culprits. A reference

was also made to the fact that, against the order of the Sessions

Judge observing about the adverse conduct of the petitioner, no

revision or any other proceeding was filed by the petitioner.

11. Regarding the issue of retirement raised by the petitioner, it

was contended that after his retirement on 30th June, 1997 on

attaining the age of superannuation, the proceedings were deemed

to have continued under Rule 9 (2) (a) of the CCS (Pension) Rules,

1972.

12. The Tribunal has held that the Central Civil Services

(Classification, Control & Appeal) Rules, 1965 Schedule Part II clearly

stipulates that the Chief Secretary would be the competent authority to

impose the penalties in case of a member of a service, Delhi and

Andaman & Nicobar Islands Police Service Grade II and who is serving

under Delhi Administration. Since at the relevant time, that is when the

disciplinary proceedings were contemplated, the petitioner was in the

Delhi and Andaman & Nicobar Islands Police Service Grade II and was

serving under the Delhi Administration therefore, Secretary, Delhi

Administration was competent to take up the matter with respect to the

penalties. The plea of the petitioner that when the alleged misconduct

was committed he was an Inspector and so the competent authority

was the Additional Commissioner of Police was repelled in view of the

Rule 14(4) of the Delhi Police (Punishment & Appeal) Rules, 1980 which

categorically stipulates that disciplinary action shall be initiated by the

competent authority under whose disciplinary control the police officer

concerned is working at the time it is decided to initiate the disciplinary

action.

13. The plea of the petitioner that the disciplinary proceedings were

barred under Section 140 of the Delhi Police Act, 1978 was also rejected

on the ground that the said section pertains to barring of suits and

prosecutions and not of departmental proceedings. The other plea of the

petitioner that the copy of the UPSC advice was not given to him was

rejected on the ground that the order dated 21st May, 2003 clearly

stipulates that the order of the UPSC letter was enclosed. In any case it

was noticed that at the relevant time there was no claim made on behalf

of the petitioner that the copy of the advice had not been given to him

and that prejudice had been caused on account of alleged not giving of

the copy of the UPSC advice.

14. Before the Tribunal the petitioner had also contended that out of

14 witnesses only 5 witnesses were examined and, therefore, there was

very little evidence against the petitioner. The Tribunal has noted that it

is not the number of witnesses which would be material but the

evidence which is against the petitioner. Testimonies by even a few

witnesses could be sufficient and material. It was observed by the

Tribunal that the scope of judicial review is limited and the finding has

to be arrived at on the basis of preponderance of probabilities. The

petitioner could have challenged the findings of the disciplinary

authority had there been no evidence or had there been any other

perversity. The Tribunal has relied on the finding of the enquiry officers

which are as under:-

"In this inquiry five witnesses have been examined. Shri Jagdish Tytler (PW1) recalls that on 4th August, 1980 Shri Sher Singh accompanied by his parents and some other persons, accompanied to him that his brother Hanuman (the deceased victim) was taken by police post Subzi Mandi (Andha Mughal Police post) and that he telephoned the station House Officer to look into the matter. During the cross examination he said that in the court he had stated that he telephoned to SHO Andha Mughal and that he did not remember now whether it was the C.O. present here or some other persons. Shri Gurbachan Lal (PW2) was posted Inspector Crime Branch in 1980 but he had retired before the chargesheet in this case was put up in the court. His testimony is, therefore, of no use in this case. Shri Sher Singh s/o Shri Hubba Singh r/o Gali Peerji Subzi Mandi,

Delhi is the elder brother of the deceased Shri Lakshman alias Hanuman. He has stated that on 1.8.1980 Head Constable Narender Kumar, Head Constable Om Prakash, and Constable Vijay Kumar, along with a few others not in uniform came to his house near the railway station Subzi Mandi and apprehended his brother Lakshman Singh and took him to the police post Andha Mughal. He learnt of it when he came home at about 5 p.m. or 5.30 p.m. First, they contacted Sub Inspector Ram Kishan, were shouted at, and then approached Shri Jagdish Tytler, Member of Parliament. Next day, again they were chased away. Then they made an application in the court of M.S.Rohilla, a Metropolitan Magistrate obtained some order which they took to police station Subzi Mandi where SHO was not present. On 3rd August, 1980 they again went to P.S. Subzi Mandi and the SHO was not available again. On 4th August, 1980 they again met Shri Jagdish Tytler who in their presence telephone the SHO of police Station Subzi Mandi and told him to release his brother if there was no case made out against him. After the telephone they again went to the police station where the SHO was not against available. During the cross examination he admitted that his brother Lakshman Singh, the deceased was arrested even earlier in connection with a quarrel with his fairly and a neighbour.

From all these testimonies, it appears that the C.O. came to know of this detention only on 4.8.1980. In fact, he has already admitted that, on 4.8.80, he did meet a few persons on the gate of his police station, who gave him an application which he marked to the police post Incharge for a report. The police post Incharge informed that Shri Lakshman Singh had been arrested the same day i.e. 4th August, 1980 and had confessed having committed a few robberies on the Railway Track and in the ridge area. The C.O.‟s lapse lies, therefore, in the fact that he did not show enough interest in the application so as to reach the police post Andha Mughal then and there, and verify, himself, the facts and circumstances of the detention of the deceased. He simply believed the version given by police post Incharge, and did nothing about it till it was too late."

15. These pleas which were raised before the Tribunal were repelled,

and consequently the original application filed by the petitioner against

the order of the disciplinary authority dated 21st May, 2003 whereby

50% cut in pension on permanent basis and forfeiture of 50% of

admissible gratuity had been imposed, was dismissed.

16. We have heard the learned counsel for the parties and have also

perused the record which was before the Tribunal. The learned counsel

for the petitioner has reiterated the pleas which were raised before the

Tribunal. The learned counsel has again contended that since on the

date of the alleged incident the Additional Commissioner of Police was

to be the competent authority for taking the disciplinary action, as the

petitioner was an Inspector at that time, therefore, the disciplinary

proceedings are vitiated. This plea of the petitioner cannot be accepted

as in terms of Rule 14(4) of the Delhi Police (Punishment & Appeal)

Rules, 1980, the disciplinary proceedings are to be initiated by the

competent authority at the time disciplinary proceedings are proposed.

It cannot be disputed that after 1986 the petitioner was in Delhi and

Andaman & Nicobar Islands Police Service Grade II and the competent

authority to impose penalties was the Chief Secretary of Delhi

Administration. Since the petitioner was in DANIPS service under the

Delhi Administration, therefore, Additional Commissioner of Police

could not be the competent authority and under the Central Civil

Services (Classification, Control and Appeal) Rules, 1965 Schedule Part

II at entry serial no. 29, the Chief Secretary, Delhi Administration was

the competent authority and thus the plea on behalf of the petitioner is

liable to be rejected that the disciplinary proceedings were not initiated

by an incompetent authority.

17. Regarding the proportionality of the punishment imposed on the

petitioner, it is apparent that the petitioner not only did not take the

prompt action to release an innocent person which resulted into his

death under police custody, the attempt was also made by the

petitioner to color it as a suicide. The action of the petitioner is to be

construed as a gross misconduct and inculpability of the petitioner

cannot be watered down by any of the pleas now raised on behalf of the

petitioner. The deceased Laxman Singh had been brutally murdered as

the police personnel in the police post had poured kerosene oil on him

and had burnt him. This fact was within the knowledge of the

petitioner, still he tried to cover up the case as that of a suicide. The

fact of illegal detention of the deceased was also in the knowledge of the

petitioner who was SHO, Subzi Mandi at that time, as Sh.Jagdish Tytler

the then member of Parliament had phoned him for releasing the

deceased Sh.Laxman Singh and even the parents of Sh.Laxman Singh

had met him with a petition, a day earlier that is on 4th August, 1980

which was marked to the Incharge, Police Post Andha Mughal. In the

facts and circumstances there are no cogent grounds have been made

out before this Court which will absolve the misconduct of the

petitioner in any manner. The action on the part of the petitioner not

only resulted in the loss of an innocent life but he also attempted to

shield the culprits who have been convicted under Section 302 read

with Section 34 of Indian Penal Code in the criminal case against them.

The conduct of the petitioner cannot be justified on any account and

consequently the penalty of withholding 50% of his pension on

permanent basis and forfeiture of 50% of his admissible gratuity cannot

be termed in any manner as disproportionate to the misconduct

attributable to him. This plea of the petitioner is also to be rejected in

view of the facts and circumstances.

18. The learned counsel for the petitioner has also raised the similar

plea as raised before the Tribunal that he was not given the copy of the

advice rendered by the UPSC. The learned counsel is however, unable to

demonstrate and show that this plea was raised by the petitioner at the

relevant time as has been observed by the Tribunal. Rather the order

dated 21st May, 2003 categorically stipulated in paragraph 5 that the

copy of the UPSC letter was enclosed. In the circumstances the learned

counsel for the petitioner has not been able to show any illegality in the

order of the Tribunal in this regard and consequently this plea of the

petitioner is also to be repelled.

19. Regarding whether there was evidence sufficient for implicating

the petitioner, it is apparent that this Court in exercise of its

jurisdiction under Article 226 of the Constitution of India is not to re-

appreciate the evidence and what is to be seen instead is whether

reasonable opportunity was given to the petitioner before imposing

punishment upon him. Whether there is sufficient evidence or not is not

to decided on the basis of number of witnesses examined by the

department. The department had examined five witnesses which

included Sh.Jagdish Tytler the then Member of Parliament who deposed

that on 4th August, 1980 Sh.Sher Singh accompanied by his parents

and other persons had complained to him that his brother, the

deceased was picked up by the police personnel of police post Subzi

Mandi and, therefore, he had telephoned the Station House Officer,

petitioner to look into the matter. This has also been established that

the parents of the deceased had met him and had handed over a written

complaint which was marked to the Incharge, Police Post, Andha

Mughal. In the circumstances, on the basis of preponderance of

probabilities the inevitable inference is that the petitioner had the

knowledge about the detention of the deceased. On behalf of the

petitioner nothing substantial has been shown as to what action had

been taken by him. The involvement of the petitioner is writ large with

the death of the deceased. Instead of getting the matter investigated, an

attempt was made to hush up the matter by registering a case as if it

was that of suicide. From the testimonies of other witnesses also it is

inevitable to infer that the case against the petitioner is not of no

evidence. In the circumstances, the plea that out of 14 only 5 witnesses

were examined is of no consequences and does not absolve the

petitioner of his misconduct nor on the basis of this plea, it can be held

that the order of the Tribunal is not sustainable or suffers from such

illegality or irregularity which would require interference or correction

by this Court in exercise of its jurisdiction under Article 226 of the

Constitution of India.

20. Consequently, in the facts and circumstances the learned counsel

for the petitioner has not been able to make out any grounds on the

basis of which it can be inferred that the order of the Tribunal dated

10th February, 2004 in O.A No.1855/2003 suffers from any illegality or

irregularity or perversity which would require interference by this Court

in exercise of its writ jurisdiction. No other pleas and points have been

raised by the counsel for the petitioner except those which have been

discussed hereinbefore. Therefore, there are no grounds to interfere

with the order of the Tribunal dated 10th February, 2004 in O.A

No.1855/2003 titled Pratap Singh v. Union of India and ors. Therefore,

the writ petition is dismissed and the parties are left to bear their own

cost.

ANIL KUMAR, J.

February 21, 2011. VEENA BIRBAL, J.

„vk‟