Delhi High Court

Rajneesh Kumar vs Commissioner Of Police And Ors on 11 December, 2012

Author: Siddharth Mridul

              IN THE HIGH COURT OF DELHI AT NEW DELHI

                                           Judgment pronounced on: 11.12.2012
WP(C) No.6953/2012

RAJNEESH KUMAR                                                   ..... Petitioner

                                         versus

COMMISSIONER OF POLICE AND ORS                                   ..... Respondents


Advocates who appeared in this case:
For the Petitioners            : Mr Sanjeev Joshi with Mr Narender Bisth
For the Respondent             : Mr Anjum Javed with Mr Mohd. Noorullah

CORAM:
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE SIDDHARTH MRIDUL

                                  JUDGMENT

SIDDHARTH MRIDUL, J.

1. This writ petition arises out of an order dated 22.09.2010 passed by

the Central Administrative Tribunal, Principal Bench, New Delhi (Tribunal)

in O.A. No. 2815/2010. By way of the impugned order, the Tribunal

dismissed the Original Application filed by the petitioner herein. The factual

matrix unfolds as under:-

(i) A regular departmental enquiry was initiated against the

petitioner by virtue of an order dated 22.08.2006. The allegation

imputed against the petitioner was that while posted at Kotla

Mubarakpur, New Delhi, the petitioner was entrusted with the

investigation of criminal case registered as FIR No. 55/06 under

Section 25 of the Arms Act, 1959.

(ii) During the trial of the said criminal case, on 03.07.2006, Shri.

Manish Yaduvanshi, Metropolitan Magistrate, Patiala House

Court, New Delhi summoned the petitioner, being the

investigating officer of the said criminal case, in order to record

his evidence.

(iii) However, on 03.07.2006 when the matter came before the

Metropolitan Magistrate, the in-charge of Process Service

Station informed the Court that the petitioner had refused to

accept the summon/notice issued to him by the Metropolitan

Magistrate on the ground that he had some important domestic

work on 03.07.2006.

(iv) The Metropolitan Magistrate took an adverse view of the matter

and observed that several efforts had been made to examine the

petitioner, and that on two earlier occasions as well i.e., on

29.04.2006 and 05.06.2006, the petitioner had absented himself

from appearing before the Metropolitan Magistrate.

(v) In view of lackadaisical approach shown by the petitioner, the

Metropolitan Magistrate directed that a departmental enquiry be

initiated against the petitioner and suitable action be taken by

the respondent.

(vi) After the launch of the enquiry, the Enquiry Officer submitted

his report on 21.04.2008. The Enquiry Officer returned the

finding that charges levelled against the petitioner stood proved.

It is relevant to note that in his defence the petitioner had

submitted before the Enquiry Officer that he had never refused

to accept the summons but he did not receive the same as he

was on earned leave from 19.05.2006 to 05.07.2006. The

petitioner further submitted in his defence that refusal to accept

the summons by the petitioner was not even recorded in the

Daily Diary.

(vii) The Disciplinary Authority after due appreciation of the

findings returned by the Enquiry Officer, agreed with the same.

By virtue of the order dated 04.03.2009, the Disciplinary

Authority imposed the punishment of forfeiture of two years of

approved service of the petitioner temporarily entailing

proportionate reduction in his pay. The Disciplinary Authority

also ordered for reduction of pay of the petitioner by two stages

for a period of two years w.e.f. 30.01.2009.

(viii) Aggrieved by the order passed by the Disciplinary Authority,

the petitioner preferred an appeal before the Appellate

Authority. The Appellate Authority by an order dated

11.12.2009 agreed with the order passed by the Disciplinary

Authority. However, the Appellate Authority disagreed with

the punishment imposed by the Disciplinary Authority and held

that in facts of the case, the punishment imposed upon the

petitioner was rather harsh. Therefore, the Appellate Authority

modified the punishment awarded from forfeiture of two years

approved service temporarily to that of withholding of next

increment temporarily for a period of one year.

(ix) Thereafter, the Respondent Department issued order dated

22.09.2009 whereby petitioner's name was put in the secret list

of officer's of doubtful integrity for a period of three years.

(x) Petitioner's representation against the order dated 22.09.2009

was dismissed by the respondent by virtue of an order dated

18.11.2009.

(xi) Consequent upon the rejection, the petitioner approached the

Tribunal seeking quashing of the orders dated 04.03.2009

(Disciplinary Authority), 11.12.2009 (Appellate Authority),

22.09.2009 and 18.11.2009.

(xii) The Tribunal by way of the order impugned dismissed the

Original Application filed by the petitioner upholding the order

dated 11.12.2009 passed by the Appellate Authority. The

relevant portion of Tribunal's decision is extracted herein

below:-

"5. As regards the ground (a), referred to in Para 2 above, regarding the orders of the disciplinary authority and the appellate authority being without application of mind and their failure to appreciate that the applicant was on earned leave for the period from 19.05.2006 to 05.07.2006, it is seen that the appellate authority had observed that even if the applicant was busy or on leave, he should not have refused to receive the summon/notice of the Court and instead could have approached and requested the Court in writing for exempting him to appear in the Court on the said date and to give fresh date. Thus, the contention of the applicant that the appellate authority had not considered

the aspect of Earned Leave, is not correct. A perusal of the orders of the disciplinary authority and the appellate authority also shows that they are speaking orders and it cannot be accepted that there is no application of mind. ....... ........ .......

7. It is well settled that Courts are not expected to interfere with the findings of the enquiry officer, disciplinary authority and the appellate authority and re-appreciate evidence in disciplinary cases unless the findings of the said authorities are perverse or mala fide or prima facie violative of principles of natural justice. We may usefully extract the following relevant observations of the Hon'ble Supreme Court in R.S. Saini vs. State of Punjab & Others, JT 1999(6) SC 507, in this regard:

"The court while exercising writ jurisdiction will not reverse a finding of the enquiring authority on the ground that the evidence adduced before it is insufficient. If there is some evidence to reasonably support the conclusion of the enquiring authority, it is not the function of the court to review the evidence and to arrive at its own independent finding. The enquiring authority is the sole Judge of the fact so long as there is some legal evidence to substantiate the finding and the adequacy or reliability of the evidence is not a matter which can be permitted to be canvassed before the court in writ proceedings."

8. We also find that the disciplinary authority and the appellate authority have arrived at conclusions after due application of mind and after considering all issues raised and after affording full opportunity to the applicant of being heard in the matter. Thus, due procedure has been followed and the principles of natural justice observed before imposing of the punishment.

9. In the case before us it cannot be said that the findings of the disciplinary authority are perverse or mala fide or that there has been violation of principles of natural justice in conduct of the proceedings."

(Underlining added)

2. Before us, the only contention urged on behalf of the petitioner is that

the authorities below failed to consider an important facet i.e., that the

petitioner was on earned leave from 19.05.2006 to 05.07.2006 and because

of being on leave, the petitioner was unable to accept the summons issued by

the Metropolitan Magistrate for the purpose of securing petitioner's

appearance 03.07.2006. The counsel for the petitioner further submitted that

non-acceptance of summons by the petitioner was unintentional.

3. We do not find any force in the submission advanced by the counsel

for the petitioner. It is not in dispute that the petitioner refused to accept the

summons/notice issued by the Metropolitan Magistrate. In fact, no plausible

explanation or reasoning has been put forth by the petitioner for not

accepting the summons except for the assertion that the petitioner was on

earned leave from 19.05.2006 till 05.07.2006 and that, therefore, he could

not accept the summons. Being on earned leave is, in our view, no reason

for refusal of summons. The Disciplinary Authority as well as the Appellate

Authority categorically recorded in their respective orders that the correct

course for the petitioner in case of his inability to attend the Court

proceedings on 03.07.2006 was to approach the Metropolitan Magistrate by

way a written application seeking exemption from personal appearance. We