Narendar Singh vs Govt Of Nct Of Delhi And Ors
2015 Latest Caselaw 8879 Del

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*       IN THE HIGH COURT OF DELHI AT NEW DELHI
+       W.P. (C) NO. 9891 of 2015
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                                   Date of Judgment: 30th November, 2015
        NARENDAR SINGH                         .....Petitioner
                           Through : Mr.   Chandra       Shekhar,
                                     Advocate
                      Versus
        GOVT. OF NCT OF DELHI & ORS.           .....Respondents
                           Through : None.

CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL

SANGITA DHINGRA SEHGAL, J.

1. The present writ petition challenges the correctness of the order dated 16.03.2007 passed by the Central Administrative Tribunal (hereinafter referred to as 'the Tribunal') in O.A. 179/2006, whereby the Tribunal dismissed the said O.A. filed by the petitioner.

2. The facts of the present case are as under:

"The applicant was appointed as Constable in the year 1984 was proceeded for certain acts of misconduct under the provisions of Delhi Police (Punishment & Appeal) Rules, 1980 (hereinafter referred as the Rules). He was placed under suspension w.e.f. 29.04.2004, which remained in force till aforesaid penalty order was passed. Summary of allegations dated 11.06.2004 besides lists of witnesses and documents were served upon him. Primary allegation was that while working in Summon Cell/NDD, he misused his official capacity and lifted one Shri Shoban Banerjee

from his residence on 15.04.2004. The gravamen of the allegation made was that:

"he brought one Mr. Shoban Banerjee of Sagar Pur from his residence on 15.4.04 to PS Tilak Marg for execution of a warrant issued by Shri Narinder Kumar MM in CC No.1956/2003 City Bank vs. Shomon Banerjee, which was got by him in connivance with City Bank Advocate H.S. Chauhan without any authority. This warrant was not marked to Const. Narender Singh or any other person by any authority. This warrant was not received through Summon Pool/NDD. Const. Narender Singh No. 592/ND in connivance of Advocate H.S. Chauhan managed to receive (sic) this warrant. After bringing Mr. Shoban Banerjee the Constable opened the office of summon pool/Tilak Marg at odd hours of night without any authority or information to senior officers. Const. Narender Singh No.592/ND involved in bargaining for negotiating the Bank loan Rs.40,000/- and cheque of Rs.12,000/- were seized from possession of Advocate Mr. H.S. Chauhan. As per record Const. Narender Singh has been deputed for service process on 12.4.04 vide DD No.6 for U.P. This warrant was managed by Const. Narender Singh with ulterior motive. Thus he misused his official capacity and also misused the office of summon pool by opening in odd hours of night without any authority."

3. Mr. Chandra Shekhar, learned counsel appearing on behalf of the petitioner submits that the order passed by the Tribunal is unjust, illegal, arbitrary and unsustainable.

4. The counsel for the petitioner has strongly urged that the conclusion drawn by the Enquiry Officer was perverse and based on no reasoning. The counsel for the petitioner has further submitted that the procedure adopted by Enquiry Officer has violated the mandate of Rule 16 (iii) of the Delhi Police (Punishment & Appeal) Rules, 1980.

5. The counsel for the petitioner further submits that the findings of the Enquiry Officer are based on no evidence and no efforts were made by the Enquiry Officer to examine any of the PWs in Examination-in-Chief. The counsel for the petitioner further contended that the petitioner has been punished for falsely showing himself on outstation duty, which is neither part of the summary of allegations nor any charge was framed against him and hence the Tribunal erred in rejecting the O.A. filed by the petitioner herein.

6. To substantiate his arguments learned counsel for the petitioner has relied upon the case of M.V. Bijlani Vs. Union of India & Ors. (2006) 5 SCC 88, wherein it was observed by the Hon'ble Supreme Court that the Enquiry Officer cannot enquire into the allegations with which the delinquent officer had not been charged.

7. We have heard the learned counsel for the petitioner and considered his submissions. We have also examined the impugned order passed by the learned Tribunal. It is the case of the petitioner that while working in Summon Cell/NDD, the petitioner misused his official capacity and wrongfully lifted one Shri.Shoban Banerjee from his residence on 15.04.2004. The petitioner was placed under suspension w.e.f. 29.04.2004 which remained in force till the termination order was passed against him. The short point which arises for consideration before this Court is as to whether the petitioner is entitled for re-instatement in service with all consequential benefits including backwages w.e.f. 29.04.2004.

It would be useful to reproduce Para 12 and 13 of the judgment of the Tribunal, which read as under:

"12. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has co-extensive power to re-appreciate the evidence or the nature of punishment. In a disciplinary inquiry the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal.

13. We may further note the fact that PW-1, Shri Shoban Banerjee, complainant, in his deposition stated in specific that he had submitted a complaint at 3.05 AM on 15th April, 2004 in Hindi to SHO, Tilak Marg, which document was exhibited as Ex.PW-1/A. As per said exhibit, applicant herein had threatened him to arrest and lodge him in lock-up and when all these were happening, SHO came to the Summon Pool. Similarly, PW-2 Biplov Dass, who had also addressed a communication to SHO, PS Tilak Marg dated 16.04.2004 (Exhibit PW-2/A) stated friends and relatives of Shoban Banerjee reached at P.S. at 12 o'clock on that night. He further stated that "the settlement took place at 2.30 AM". Similarly, M.B. Shiv Rama Krishnan, PW-5, in statement dated 15.04.2004 (Exhibit PW-5/A) had clearly stated that he "arrived at Tilag Marg P.S. at 12.30". PW-1 and PW-2 were cross-examined by applicant in detail. On perusal of original record produced before us, we find that no suggestion was put to the said witness viz. PW-1 about the timing of the incident. Similar was the case in respect of statement made by PW-2. PW-5 had not been cross-examined despite opportunity given. Therefore, it is an admitted case of the parties that applicant was found along with others in the Summon Pool at late night. One of the allegations made against

him had been that he exercised his official capacity and also mis-used the Office of Summon Pool "by opening in odd hours of night without any authority". Even during the course of oral hearing, apart from stating that he was clearing the back-log, no justifiable and convincing explanation was offered. Time and again, the Hon'ble Supreme Court has held that Court/Tribunal cannot interfere in the findings recorded by the concerned authorities as long as the same are based on "some legal evidence". In the present case, we are of the considered view that there is overwhelming evidence produced and established against the applicant. The plea raised by him that he had been subjected to punishment on the allegations for which he was not charged and consequently placing reliance on M.V. Bijlani (supra), is of no assistance. Said plea has been raised only to establish that there had been some procedural irregularities, if any, and to take advantage of the said gap created. In our considered view, M.V. Bijlani (supra) is inapplicable in the facts and circumstances of the present case. Findings of the Inquiry Officer that the complainant was not only harassed but there was a wrongful confinement of the complainant at PS, Tilak Marg is not far from the hard established fact."

8. The learned Tribunal reproduced the following findings of the Enquiry Officer in Para 5 of the impugned judgement which has been reproduced as under:

"I have examined the statement of PWs who are members of public and their written statements, which are available on the DE file as exhibits. I have no doubt that Sh. Soman Banerjee has deposed truly and completely. There is not even an iota of difference between his statement and statements of other persons.

Therefore, the fact remains that defaulter Constable at

the behest of Advocate H.S. Chauhan and Citi Bank officer did try to bully Sh. Soman Banerjee in order to effect recovery. Warrant of arrest was issued on 25.3.04 and was returnable by 26.6.04. During this period Sh. Soman Banerjee stated that he had already appeared before the court and obtained bail. From the statement of PWs ..., it is very much established the defaulter had shown more interest then required in the matter and had also tried to mislead by not showing the warrant to Sh. Banerjee. I also conclude that the very presence of Mr. Soman Banerjee, his friends and relatives in Summon Pool of P.S. Tilak Marg late at night along with Advocate and officers of other party is not likely to be voluntary and the fact that defaulter Const. was trying to mediate and influence is clearly established. I would put it briefly that the defaulter Const. Intervened without due process of law at the behest of Citi Bank and derived his strength from NBW, which was never issued to him for service thereby acting as an instrument for recovery, which is uncalled for. I say so after carefully perusing the record including statement of PWs, the documentary exhibits, defence statements of defaulter and finally his representation on file.

As regards the issue of errors procedural or otherwise, I must admit that SI D.D. Meena and Inspr. Pratima Sharma were expected to (sic) have sufficient knowledge in making Seizure Memo and their defaults need to be viewed very seriously. The fault of SI D.D. Meena No. 1096/D when viewed in conjunction with his deposition appears to be mischievous.... I do have a feeling that SI Meena may have intended to assist the defaulter Constable by purposely leaving these gaps. Fault of Inspr. Pratima Sharma also has to be viewed very seriously.

As discussed above Charge is definitely proved against the defaulter Constable Narender Singh No. 592/ND, despite the assistance that has been provided to him by

his colleagues in the form of creating gaps of which he intends to take advantage. Now the question is as to what is the specific misconduct that has been proved. The defaulter Constable acted almost as a goon on behalf of a financial institution for a motive, which is not difficult to understand. He misused his powers as a police officer and his posting in the Summon Pool, in order to lay hand on NBW and then threatening the victims with arrest if they do not pay up.... What he did find parallel in Mafia gangs, who I would say are still better because they openly accept to be Mafias. Here is a policeman paid by the Government to maintain law & order, who instead had misused the same process of law to run his own personal mission. I am surprised by his imagination and guts as to how he could plan the entire episode without feeling even once that he could be cornered. One really imagine as to what will happen to innocent law abiding citizens, if we have such like characters as policemen. The misdemeanour is definitely one of the gravest of grave misconduct and the officer has openly slaughtered the very purpose for which the Government has raised law enforcement agency and maintains it at a very heavy cost. The society scream in disgust on every attack on a human being, but here is a man who has done away with the entire system. Any leniency shown to him would only encourage all others who may like to emulate him. In an environment where there is an appeal from every quarter to make the police force more purposeful and citizen friendly, at least as a first step, we need to uproot all such elements from our force and clear it up. His family considerations do not deter me because we are not running a charitable institution. It is an organization equipped with immense powers, where deviations of such serious nature should only be met with dismissal.

9. At the outset, before delving into the merits of the submissions made by the counsel for the petitioner, it would be relevant to consider the settled position of law. The issues of limitation, delay and laches as well as condonation of such delay are being examined and explained every day by the Courts. It is true that the general rule of limitation is based on Latin maxim "Vigilantibus et non dormientibus, jura subveniunt" which means the law assists those who are vigilant with their rights and not those who sleep thereupon. Also, the law of limitation is enshrined in the legal maxim "Interest reipublicae ut sit finis litium" which means it is for the general welfare that a period be put to litigation. Rules of Limitation are not meant to destroy the rights of the parties; rather the idea is that every legal remedy must be kept alive for a legislatively fixed period of time.

10. The Privy Council in General Fire and Life Assurance Corporation Ltd. v. Janmahomed Abdul Rahim AIR (1941) PC 6, relied upon the writings of Mr. Mitra in Tagore Law Lectures 1932 wherein it has been said that "a law of limitation and prescription may appear to operate harshly and unjustly in a particular case, but if the law provides for a limitation, it is to be enforced even at the risk of hardship to a particular party as the Judge cannot, on applicable grounds, enlarge the time allowed by the law, postpone its operation, or introduce exceptions not recognised by law."

11. In State of M.P. v. Nandlal Jaiswal and Ors. (1986) 4 SCC 566, the Hon'ble Supreme Court observed that it is well settled that the

power of the High Court to issue an appropriate writ under Article 226 of the Constitution of India is discretionary and the High Court in the exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction. It was stated that this rule is premised on a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was further observed by the Apex Court that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third party rights in the meantime is an important factor which High Court also weighs in deciding whether or not to exercise such jurisdiction.

12. After perusing the above case law, we are of the considered view that the courts should not adopt an injustice-oriented approach in deciding the claim of the petitioner. However, the court while deciding such claim has to draw a distinction between delay and inordinate delay for want of bona fides of an inaction or negligence would deprive a party of the protection of Section 5 of the Limitation Act, 1963. Sufficient cause is a condition precedent for exercise of discretion by the Court for condoning

the delay. Courts have time and again held that when mandatory provision is not complied with and the delay is not properly, satisfactorily and convincingly explained, the court cannot condone the delay on sympathetic grounds alone. The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. The fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both the parties and the said principle cannot be given a total go by in the name of liberal approach.

13. It is also a well settled principle of law that the doctrine of delay and laches should not be lightly brushed aside. A writ court is required to weigh the explanation offered and the acceptability of the same. The court should bear in mind that it is exercising an extraordinary and equitable jurisdiction. As a constitutional court, it has a duty to protect the rights of the citizens but simultaneously it is to keep itself alive to the primary principle that when an aggrieved person, without adequate reason, approaches the court at his own leisure or pleasure, the Court would be under legal obligation to scrutinize whether the lis at a belated stage should be entertained or not.

14. Normally, in the cases of belated approach, writ petition has to be dismissed. Delay or laches is one of the factors to be borne in mind by the Courts when they exercise their discretionary powers under Article 226 of the Constitution of India. In an appropriate case the Court may refuse to invoke its extraordinary

powers if there is such negligence or omission on the part of the petitioner to assert his right as taken in conjunction with the lapse of time and other circumstances which causes prejudice to the opposite party. In the instant case, the petitioner preferred to sleep over his rights for a period of more than 8 years and approached this Court in 2015, hence, we are of the considered view that the claim of the petitioner must fail on the ground of delay and laches in approaching this Court.

15. After considering the facts and circumstances of the case and the reasons for inordinate delay of more than 8 years, we do not find sufficient grounds to condone the delay on the part of the petitioner.

16. Furthermore, it is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi-criminal in nature, there should be some evidences to prove the charge. Although the charges in a departmental proceedings are not required to be proved like a criminal trial, i.e., beyond all reasonable doubts, we cannot lose sight of the fact that the Enquiry Officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact, he cannot refuse to consider the relevant facts and also cannot shift the burden of proof and cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the

allegations with which the delinquent officer had not been charged with.

17. In view of the facts of the case and the above-cited judgments, we find no infirmity in the order of the Tribunal impugned before us and accordingly, the present writ petition being devoid of any merit is dismissed. No order as to costs.

SANGITA DHINGRA SEHGAL, J.

G. S. SISTANI, J.

NOVEMBER 30, 2015 sc//