Manju Pandey vs Union Of India & Ors
2016 Latest Caselaw 2497 Del

       * IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                      Date of decision: 31st March, 2016

+      W.P.(C) No.3963/2015 & CM No.19779/2015 (for directions)

       MANJU PANDEY                                        ..... Petitioner
                   Through:           Mr. Prashant Bhushan, Mr. Syed
                                      Musaib and Mr. O. Kultan, Advs.

                          Versus
    UNION OF INDIA & ORS                      ..... Respondents

Through: Ms. Suparna Srivastava, Ms. Anushka Arora and Mr. Manu Dev Sharma, Advs. for UOI.

Mr. Rahul Mehra, Mr. Gautam Narayan, Mr. Sanyog Bahadur and Mr. Shekhar Budakoti, Advs. for GNCTD.

CORAM:-

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1. This petition under Article 226 of the Constitution of India seeks a

mandamus to the respondent no.2 Commissioner of Police (CP) to comply

with the order dated 9th October, 2014 of the Lieutenant Governor (LG) of

Delhi for taking departmental action as per Rules against the respondent no.3

Inspector Rajnish Parmar (No.D-2182) PIS No.16890104 and to also initiate

departmental action against respondent no.4 Ct. Amar Singh (No.9448/PC)

and respondent no.5 Ct. Sudarshan (No.2310/PCR) of Delhi Police, as per

the Service Rules of Delhi Police.

2. It is the case of the petitioner:

(i) that the son of the petitioner viz. Sh. Karan Pandey aged 19

years while coming home in the night between 27th and 28th

July, 2013 riding a pillion of the motorcycle of his friend Sh.

Puneet Sharma was at about 2:00 p.m. in the night chased by a

Police Control Room (PCR) van on night patrol duty near

Windsor Place roundabout, Ashoka Road, New Delhi and the

respondent no.3 Inspector Rajnish Parmar sitting in the said

PCR van opened fire with his left hand from his service

revolver and which hit Sh. Karan Pandey in his back;

(ii) that Sh. Karan Pandey was taken to Dr. Ram Manohar Lohia

hospital by that very PCR van but died on the way and was

declared brought dead;

(iii) that the police officials of the PCR van involved in the incident

however got FIR No.127/2013 dated 28th July, 2013 registered

with the police station Parliament Street against the said Sh.

Karan Pandey and his friend of offences under Sections 147,

148, 149, 186, 323, 353 and 34 IPC read with Section 3 of the

Prevention of Damage to Public Properties Act, 1984;

(iv) that in the false FIR, it was alleged that on 28th July, 2013 at

about 2:10 to 2:15 A.M. PCR van performing night checking

duty against stunt bikers was attacked by violent bikers

numbering about 34/40 who were performing stunts and

dangerous maneuvers at Windsor Place at Ashoka Road;

(v) that the PCR van tried to contain the bikers by giving warning

over public announcement (PA) system but they paid no heed

and became very aggressive and started pelting stones on the

PCR van;

(vi) that the respondent no.3 Inspector Rajnish Parmar fired two

warning shots in the air from his service revolver to disperse the

mob attacking the PCR Van; however the mob continued to pelt

stones and performed threatening maneuvers on the move;

(vii) that the respondent no.3 Inspector Rajnish Parmar as a last

resort aimed and fired at the rear tyre of a threatening biker;

however the biker suddenly lifted the front portion of the bike in

a daring stunt and the bullet hit the pillion rider on his back

instead of the rear tyre;

(viii) that the LG of Delhi on 6th August, 2013 ordered a magisterial

inquiry into the incident;

(ix) that the District Magistrate (DM) in his report dated 23rd

January, 2014 found that the allegation in the FIR of heavy

stone pelting by bikers at PCR van which forced the occupants

of the PCR van to open fire on bikers to be improbable and

doubtful; that the amount of force used by the police in the

incident was disproportionate to the amount of threat perception

to life of the police personnel or public; and, that there is every

possibility of tampering of evidence / conclusion of facts by

PCR officials;

(x) that the LG of Delhi on the basis of the report aforesaid

sanctioned monetary relief of Rs.50,00,000/- to the next of kin

of Sh. Karan Pandey and directed the respondent no.2 CP to

take departmental action against the Police Inspector concerned

as per Rules;

(xi) that the National Human Rights Commission (NHRC) also took

cognizance of the incident and on the basis of the aforesaid

report and its own inquiry passed an order dated 27 th July, 2014

recommending payment of Rs.5,00,000/- as monetary

compensation to the petitioner and action against the delinquent

officials;

(ix) that though in view of the aforesaid a clear case of criminal

negligence, commission of culpable homicide not amounting to

murder, destruction of evidence and cooking of evidence in

their favour by police officials is made out but the respondent

no.2 CP neither recommended registration of criminal action

against the guilty officers nor initiated departmental

proceedings against any of the erring police officials.

3. The petition came up first before this Court on 22nd April, 2015 when

notice thereof was issued.

4. On the next date i.e. 28th May, 2015, the standing counsel for the

Government of NCT of Delhi (GNCTD) stated that departmental inquiry had

been commenced against the respondent no.3 Inspector Rajnish Parmar in

December, 2014.

5. A status report dated 11th August, 2015 has been filed by the

respondent no.2 CP to the effect that i) during investigation in pursuance to

FIR No.127/2013, the motorcycle on which Sh. Puneet Sharma and deceased

Sh. Karan Pandey were travelling was got mechanically examined and the

structure of the motorcycle was found to have been modified to make it

capable of creating enormous sound with high speed and by fitting it with

special quality horns; ii) inspection of PCR van also confirmed damage to it;

brick and stone pieces were found from inside the PCR Van and stones /

brick pieces were also found lying at the spot; iii) medical examination of

Sh. Puneet Sharma and Sh. Karan Pandey confirmed that both had consumed

alcohol; iv) that as per the post mortem examination of deceased Sh. Karan

Pandey, cause of death was as a result of haemorrhage and shock consequent

upon firearm ammunition injury; v) that the magisterial inquiry has

concluded negligence and error on judgment on the part of the respondent

no.3 Inspector Rajnish Parmar to open fire at the rear tyre of the bike which

resulted in the death of Sh. Karan Pandey; vi) that the departmental inquiry

against respondent no.3 Inspector Rajnish Parmar for the above lapses was in

progress; vii) that the respondent no.4 Ct. Amar Singh was performing the

duty of Driver in PCR van used by respondent no.3 Inspector Rajnish Parmar

for patrolling duty; viii) that the respondent no.5 Ct. Sudarshan was

performing the duty of Wireless Operator with respondent no.3 Inspector

Rajnish Parmar; ix) that the magisterial inquiry in no manner indicted either

of the respondents no.4 and 5; x) that NHRC report is primarily based on

magisterial inquiry report and does not specify any other report and also did

not indict either of the respondents no.3,4 or 5 specifically or any other

police official; xi) that the Disciplinary Authority on an examination of

magisterial report and evidence / facts emerging during investigation of FIR

No.127/2013 of police station Parliament Street has come to a conscious

decision that no case is made out to initiate any departmental action against

the respondents no.4 and 5; xii) that during magisterial inquiry the petitioner

had suspected Sh. Puneet Sharma for the death of her son.

6. The petitioner has filed CM No.19779/2015 seeking disciplinary

proceedings against the respondents no.3 to 5 by a neutral agency like

Central Vigilance Commission (CVC) averring that the petitioner has every

reasons to believe that there cannot be a fair departmental inquiry against the

respondents no.3 to 5 by the Inquiry Officer appointed by the Disciplinary

Authority of Delhi Police and that the petitioner bona fide believes that the

inquiry initiated by the police department is nothing more than an eyewash.

7. On 15th September, 2015, it was enquired from the counsel for the

petitioner whether not departmental / disciplinary proceedings by their very

nature are an internal proceedings and how can it be ordered to be carried out

by an outside agency like the CVC. It was further observed that giving of

any such direction as sought in CM No.19779/2015 unless it was permitted

by the Rules of Delhi Police may ultimately become a ground for

challenging the departmental / disciplinary proceedings. Vide order of the

same date, on the statement of the counsel for the petitioner that though the

petitioner was being called for recording of her statement in the departmental

proceedings but the said statement was being purported to be recorded by the

respondent no.3 Inspector Rajnish Parmar himself, the standing counsel for

GNCTD was requested to look into the matter and ensure that no harassment

is caused to the petitioner. The counsels were heard on 17th December, 2015

and judgment reserved with a direction to the counsel for the respondent no.2

CP to place on record a copy of the Service Rules relating to Delhi Police.

The same have been placed on record.

8. The counsel for the petitioner during the hearing, besides drawing

attention to the magisterial report, the order dated 19th October, 2014 of the

LG of Delhi and to the comments of the Delhi Police on the findings of the

magisterial inquiry inter alia to the effect that the actions of respondent no.3

Inspector Rajnish Parmar were bona fide acts performed in discharge of his

lawful duties, in response to the queries raised by me, drew attention to

Sanjiv Kumar Vs. Om Prakash Chautala (2005) 5 SCC 510 to contend that

the departmental inquiry can be entrusted to the CVC. He also argued that

the DM in his report having found police to be guilty of fabricating evidence

and protecting its own personnel and the police notwithstanding the same

having not lodged any FIR against respondent no.3 Inspector Rajnish Parmar

and having also not even initiated disciplinary proceedings as it had been

directed till compelled by filing of this petition, cannot be trusted with

conducting a fair departmental inquiry and thus the need to direct the same to

be conducted by an independent agency as the CVC.

9. Per contra, it was the contention of the counsel for the GNCTD that of

the 28 witnesses to be examined in the departmental inquiry, 23 had already

been examined and only 5 witnesses remained to be examined and it would

not be proper to interfere with the departmental proceedings at such a stage.

In response to the arguments of the counsel for the petitioner of the police

having cooked up the case and having fabricated evidence, attention was also

drawn to the magisterial inquiry report recording that it was very clear from

CCTV footage that bikers were creating nuisance for public in this area on

the night of 27th July, 2013 and statements of two public witnesses also

confirmed the fact that bikers moved in groups, creating very high noise with

modified silencers and high power horns and with rash driving at very high

speed created problems for other vehicles as also clear from the CCTV

footage. It is also shown from the report of the magisterial inquiry that it

was proved that the respondent no.3 Inspector Rajnish Parmar had first fired

in the air and public announcement was also made. It was yet further

contended that the Inquiry Officer appointed is an IPS officer of the Deputy

Commissioner of Police rank and that there is no basis for apprehending that

the report of the Inquiry Officer will not be fair.

10. The counsel for the petitioner in rejoinder argued that the negligence

of the respondent no.3 Inspector Rajnish Parmar is writ large from the

factum of his having shot with his left hand when he admitted that he usually

shoots from his right hand. It was also argued that from the stand of the

respondent no.2 CP in the comments on the magisterial inquiry protecting

the delinquent police officials, the credibility of the departmental

proceedings is doubtful.

11. As would be obvious from the aforesaid, two questions need

consideration. Firstly, whether there is any need to direct departmental

proceedings against the respondents no. 4 and 5. Secondly, whether there is

any need to direct departmental proceedings / disciplinary proceedings

against the respondent no.3 Inspector Rajnish Parmar to be conducted by the

CVC.

12. The order dated 9th October, 2014 of the LG of Delhi directs the

respondent no.2 CP to take departmental action only against the "Police

Inspector concerned" and not against all the police personnel in the PCR

Van. NHRC also vide its letter dated 22nd July, 2014 to the GNCTD only

directed departmental proceedings to be initiated "against the delinquent

police officials" without naming the respondents no.4 and 5. The DM also in

his report has concluded "negligence and error of judgment on the part of

Inspector Rajnish Parmar to open fire at the rear tyre of bike which resulted

in the death of Sh. Karan Pandey" and "unnecessary use of force by opening

fire which was disproportionate to the amount of threat to PCR officials‟

life" and does not attribute any role to the respondents no.4 and 5. The

petitioner also in his petition has not attributed any role of respondents 4 and

5 in causing death to Sh. Karan Pandey. Per contra, the Disciplinary

Authority of the Delhi Police has categorically reasoned that the respondents

no.4 and 5 were merely performing the role of the Driver and Wireless

Operator in the PCR van. In this state of facts, I do not find any case for this

Court to in exercise of powers of judicial review under Article 226 of the

Constitution of India interfere with the decision of the Disciplinary Authority

of Delhi Police of no grounds existing for initiating any disciplinary action

against the respondents no.4 and 5 is made out. The petitioner thus cannot

be granted the said relief.

13. Though the counsel for the petitioner sought the relief of conduct of

the disciplinary proceedings by an outside agency as the CVC without citing

the rules of Delhi Police under which such disciplinary proceedings are to be

undertaken but the counsel for GNCTD as per the direction while reserving

the judgment has supplied copy of the Delhi Police (Punishing and Appeal)

Rules, 1980 made in exercise of powers conferred by Section 147(1) and (2)

by Delhi Police Act, 1978. Rule 15 thereof provides for preliminary inquiry

in the nature of a fact finding inquiry to establish the nature of default and

identity of defaulter. Rule 16 provides the procedure in departmental

inquiries and provides for appearance of the police official accused of

misconduct before the Disciplinary Authority or such inquiry officer as may

be appointed by the Disciplinary Authority. Rule 4(iv) defines Disciplinary

Authority as the authority competent to award punishment as prescribed in

the Delhi Police Act. Section 21 of the Delhi Police Act empowers the

Police officials of the rank mentioned therein for awarding the punishments

mentioned therein and Section 23 provides for appeals from orders of

punishment.

14. It is thus found that in the Delhi Police Act and the Rules aforesaid the

choice of inquiry officer has been left to the Disciplinary Authority.

15. The Courts are often faced with arguments by the charged officials

objecting to the appointment of Inquiry Officer on the ground of belonging

to the department / office which has initiated disciplinary proceedings or

being subordinate to the Disciplinary Authority and thus being under the

dictates of the department / office / Disciplinary Authority and expressing

apprehensions as to the fairness of the enquiry and seeking appointment of

an independent Inquiry Officer. It has however always been held that such

allegations do not constitute a ground for the Court to direct appointment of

an independent Inquiry Officer. I see no reason why the same should not

hold good in the present case as well where the grievance, instead of being

made by the officer under inquiry is made by the complainant at whose

behest the inquiry has been initiated. I must also state that from the mere

fact of the respondent no.2 CP in his comments sought from him to the

report of the DM has agreed with the version then before him of his own

officials is no ground to presume that he, acting as the Disciplinary

Authority, or the official appointed by him as the Inquiry Officer, would not

make an unbiased and fair report. It has been held that there can be no such

assumption and mere apprehension of bias cannot be a ground for

interference without existence of real danger of bias being established. It has

further been held that though domestic enquiries have to be fair but the

principle of fairness cannot be extended to demanding an outside Inquiry

Officer and that departmental bias cannot be put into the same cohort as a

personal. Reference can be made to Lalit Kumar Modi Vs. Board of

Control for Cricket in India (2011) 10 SCC 106, Biecco Lawrie Ltd. Vs.

State of West Bengal (2009) 10 SCC 32, The General Secretary, South

Indian Cashew Factories Workers Union Vs. The Managing Director,

Kerala State Cashew Development Corporation Ltd. (2006) 5 SCC 201 and

Om Pal Singh Vs. Union of India MANU/DE/1203/2006 (DB). In Mohd.

Yunus Khan Vs. State of U.P. (2010) 10 SCC 539 it was also held that

though technical rules of procedure do not apply to domestic enquiry but

they are quasi judicial proceedings. Similarly, in Ved Prakash Malhotra Vs.

State Bank of India MANU/DE/0303/1973 it was held that the decision in a

disciplinary proceeding is not a personal but an institutional decision.

16. With respect to the specific argument of the counsel for the petitioner,

of negligence of the respondent No.3 Inspector Rajnish Parmar and of

unfairness of the stand of the Delhi Police having stood established from the

respondent no.3 Inspector Rajnish Parmar admittedly firing from his left

hand instead of his right hand, all that can be observed is that it is the

undisputed position that the respondent no.3 Inspector Rajnish Parmar at that

time was sitting on the front seat of the moving PCR van on the side of the

driver and chasing the motorcycle and ordinarily the right hand of the person

sitting besides the driver of a vehicle should be towards the driver and away

from the window or the door of the vehicle through which the shot was fired.

17. Insofar as directions sought of conduct of the departmental inquiry by

the CVC is concerned, the CVC has been constituted under the Central

Vigilance Commission Act, 2003 to enquire or cause enquiries to be

conducted into offences alleged to have been committed under the

Prevention of Corruption Act, 1988 by certain categories of public servants

and that the functions prescribed in Section 8 thereof. The said functions

also extend to investigation of offences alleged to have been committed

under the Prevention of Corruption Act. Supreme Court, in Centre for

Public Interest Litigation Vs. Union of India (2011) 4 SCC 1 also has held

it to be an integrity institution empowered to exercise superintendence over

vigilance administration of various ministries. The respondent no.3 Inspector

Rajnish Parmar herein is not being investigated under the Prevention of

Corruption Act. The CVC being a statutory body can perform only such

functions, to perform which it has been constituted and no other. The

counsel for the petitioner has not cited any particular provision of the CVC

Act empowering the CVC to conduct the departmental inquiry against the

respondent no.3 Rajnish Parmar. Supreme Court in Sanjiv Kumar supra

cited by the counsel for the petitioner was concerned with complaint of large

scale corruption and tampering of records by the Chief Minister in filling up

of vacancies of JBT teachers in the State of Haryana and the grievance of the

Chief Minister, owing to his high position, not allowing a fair investigation.

It was in this circumstance that the Solicitor General of India appearing for

the Central Bureau of Investigation (CBI) conceded to CBI being entrusted

with the investigation so that it can be conducted expeditiously and fairly.

Certainly the respondent no.3 Inspector Rajnish Parmar, a mere Inspector of

Delhi Police, cannot be said to be exercising the same clout as the Chief

Minister of a State.

18. I am therefore of the opinion that the direction for conduct of

departmental proceedings by the CVC also cannot be granted.

19. It cannot be lost sight of that the petition was filed with the grievance

of the respondent no.2 CP inspite of directions of the LG of Delhi and the

NHRC having not initiated a disciplinary proceedings against the

respondents no.3 to 5 The proceedings against the respondent no.3 Inspector

Rajnish Parmar have since been commenced and are underway and the

Disciplinary Authority of the Delhi Police after consideration has not found

any material to initiate proceedings against the respondents no.4 and 5 and I

have hereinabove not found any ground to interfere therewith.

20. The petition is thus disposed of observing that the petitioner is not

entitled to any further relief.

No costs.

RAJIV SAHAI ENDLAW, J.

MARCH 31, 2016 „gsr‟