Sanjeeva Kumar, Member

1. By way of this OA filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has sought the following relief(s) :

"(i) To set aside the impugned orders dated 26.07.2013 and 07.01.2016

(ii) Pass any such orders as the Court may deem fit in the light of above mentioned facts and circumstances of the case."

2. The brief facts of the case as mentioned in the OA are that the applicant was enrolled in Delhi Police in the post of Sub Inspector on 09.07.1990 and he was promoted to the rank of Inspector in November, 2007. Further, he was assigned the duties as an SHO at Police Station, Connaught Place vide order dated 31.01.2011. One Mr. P. Chatterjee filed a complaint against the conduct of the Police officers to OSD, Public Grievances and the same was forwarded to the Joint Commissioner of Police wherein it was intimated that an inquiry may be conducted by the PHQ Vigilance into the conduct of different police officers for not registering an FIR against late accused Shri J.K.Patel for his misbehaviour and harassing the rightful owner i.e. M/s Sumanta Sunata Overseas Pvt. Ltd. in Connaught Place, Janpath Lane, New Delhi and later even after registering an FIR against the criminal trespasser, not allowing the owner to occupy his premises and locking it to prevent the owner's entry. The complainant further moved an application on 14.02.2012 on behalf of the owner-company for release of keys of the property in the suit titled as State vs. J.K.Patel in the District Court, Patiala House. The District Court passed an order dated 29.02.2011 to release the keys of concerned premises to the complainant. However, the same was to be done only on production of authorisation letter issued by the rightful owner. Since the complainant did not produce any ownership documents, the possession could not be handed over to him.

3. A vigilance inquiry was ordered in the matter wherein it was concluded that the property was sealed by the IO/SHO, Connaught Place contrary to the normal practice, even though it ruled out any malafide on the part of the applicant. Based on the said report, though there was no malafide on the part of the SHO in the report, a show cause was issued on 04.02.2013, asking him as to why disciplinary action should not be initiated against him for dereliction in discharge of official duties. The applicant submitted his reply explaining the reasons that the complainant Mr. P.Chatterjee at the time of registration of the case produced an authorisation letter issued by the said company only to file a complaint and not to take possession of the property in question. The applicant claims that the whole action was done to protect the property of the rightful owner. It is also contended that the complainant was able to retake possession of the property through court on production of proper authorisation letter dated 22.02.2013. However, the disciplinary authority in response to the show cause opined that it was established that sealing of the property by the IO and the applicant (SHO, PS Connaught Place) was contrary to normal practice. However, without considering the above facts, though the applicant in his reply to the show cause has tried to explain that the sealing of property was in the interest of rightful owner and no ulterior motive was attached, the disciplinary authority passed an order whereby conduct of the applicant and IO both have been censured but the IO who was actually moved the note for sealing of the building, seeking consent of the applicant was let off with a warning on appeal by the appellate authority. However, the appellate authority rejected the representation of the applicant and retained the penalty of censure in his case.

4. The respondents have filed their counter reply following which a rejoinder has been filed by the applicant.

5. We have perused the pleadings on record and also heard Shri L.R. Khatana, learned counsel for the applicant and Shri Puneet Rathi for Mrs. Rashmi Chopra, learned counsel for the respondents.

6. The main contention of the learned counsel for the applicant is that the applicant was not at fault at all as evident from the relevant records which indicate that at the time of registration of the case, Mr.P.Chatterjee did not produce any authorisation documents on behalf of the company and as the complainant was not authorized to take possession, which he obtained only later through order of the competent court. The action to seal the property was to protect the same with a view to handing over to the legitimate owner and there was no malafide involved in the case. It has also been brought out that it was IO's proposal to seal the property and applicant has merely given his consent as supervisory officer for the same.

7. Learned counsel for the respondents, on the other hand, has reiterated the averments made in the counter reply and submitted that no powers were vested in police by any law to seal the property in these circumstances and the act of the local police is contrary to the normal procedure. It has also been stated that the said action of the police deprived the complainant of the legitimate use of the property as long as it remained sealed. Learned counsel for the respondents to buttress his arguments draws our attention to the relevant Clause of the CrPC (Section 102) and also the relevant judgment of the Hon'ble Bombay High Court in Sudhir Vasant Karnataki vs. State of Maharastra & Others vide Criminal Writ Petition No.3198 of 2009 decided 29.11.2010 wherein the High Court held that the words "any property" used in sub-section (1) of Section 102 of the Code of Criminal Procedure, 1973 does not include "immoveable property" and by sealing the property the applicant and co-delinquent have violated the provisions of Section 102 of CrPC.

8. After hearing both the parties, we have delineated the following issues:

(i) whether the applicant was alone responsible for the said act of sealing of the property

(ii) whether the same was done with any malafide intent

(iii) whether the doctrine of equality was kept in view while imposing the penalty on the IO and the applicant

9. So far as the first issue is concerned, it has been clearly brought out in the impugned orders of disciplinary and the appellate authorities that the IO with the consent of SHO, Connought Place had sealed the property. Therefore, it is not in dispute that sealing of the property was not any unilateral action taken by the SHO, without any proposal/note submitted by his subordinate officer, who was the IO in the case. Therefore, if at all any accountability is to be fixed for the act, the role of the IO cannot be overlooked based on whose proposal, the consent was given by the applicant, who was supervisory officer for the IO.

10. So far as the second issue of malafide is concerned, we have perused the report of the Special Commissioner of Police/Vigilance, Delhi, based on which the disciplinary authority had passed the impugned order. The report of the Special Commissioner of Police/Vigilance reads as follows:

"The matter has been examined in detail. The complainant P. Chaterjee, at the relevant time, does not have any valid documents which entitles him to take possession of the property except for an authorisation to lodge a complaint for registration of a case on behalf of the company. Furthermore, after sealing the property, investigating Officer has deposited the keys in the malkhana and made necessary D.D. entries to that effect. Moreover, the matter was in the knowledge of senior supervisory officers including Addl.CP/New Delhi Distt. and Joint Commissioner of Police, New Delhi Range. The keys of the sealed property in question have been released to the rightful owner on the no objection issued by the police in the court.

No malafide on the part of the SHO/PS Connaught Place and Investigating Officer except for an omission to follow the proper course of law in such situations, has emerged during enquiry. In fact, the sealing of the premises was done by police with the intent to protect the property and nowhere it has been held that the act was with perceived mind to harass the complainant. Thus, the act committed by investigating Officer cannot be termed as contrary to law."

11. It is evident from the above that the sealing of the premises was done by police with the intent to protect the property and it was not an act done with the intention to harass the complainant. It also says that the act committed by the IO cannot be termed "as contrary to law". If as per the above vigilance report action of the IO was not in violative of law, and since the applicant had only given his consent for the sealing, we fail to understand as to how only his action has been termed as contrary to law.

12. Regarding the powers of the police to seal the property or otherwise, the impugned order of the disciplinary authority merely states that there is no power vested with police by any law to seal the property and in these circumstances, the action of the local police is contrary to the normal procedure.

But it is not clear as to what should have been the procedure in the instant case, more so, when the intention of the applicant was to protect the property.

13. So far as the third issue is concerned, we find it strange that though the purported act of sealing the property originated from the notings of the IO, which was consented by the SHO and admittedly there was no such direction from him to IO to seal the property, he alone has been held responsible by the appellate authority.

14. It is relevant to emphasize that though both had been censured by the disciplinary authority but on appeal the penalty of censure was converted to warning by the appellate authority who held that the IO was clearly not at fault as it was his proper investigation after 02.12.2011 that led to the court order in de-sealing and handing of the property to its rightful owner. Further, it goes on to say that the action in the case should be against the SHO alone for delay in registering of a criminal case by four months and thereafter adopting the mode which has been described by the SHO's superior "as contrary to normal practice". However, neither in the note calling for his explanation nor in the show cause notice issued to the applicant, there is any mention of delay in registering of the criminal case. The vigilance inquiry report of Special Commissioner (Vigilance) on which the show cause is premised, has also note touched on it. Further, the impugned order of the disciplinary authority though specifically refers to registration of the case of FIR No.216/11 under Sections 380/420/468/471/448 IPC in Police Station, Connaught Place, based on the complaint of Mr. P.Chatterjee, following which Mr.J.K.Patel was arrested, it does not allude to any delay in registering of criminal case but it is strangely included in the impugned order of the appellate authority without any background. Neither by way of show cause nor subsequently the applicant was given any opportunity to clarify the purported delay in registration of case of FIR which tantamount to denial of natural justice.

15. So far as the third issue pertaining to the doctrine of equality is concerned, we are aware that the Tribunal should not involve itself in appreciating the evidence but it calls for intervention by the court if the principle of equality is violated. The administrative action is to be just on the test of fair play and reasonableness. The principle of equality is that there should be no discrimination between the applicant and IO as regards the penalty imposed on them is concerned. Both were similarly situated and in fact, culpability, if any, of the IO appears to be more as he was fully aware of the facts and circumstances of the case based on which he sought the consent of the SHO for sealing the property. If the order dated 03.12.2013 in the case of IO was set aside and he was warned to be more careful in future, we do not see as to why the same treatment should not be meted out to the applicant.

16. In view of the facts and circumstances, the OA is allowed and the impugned orders dated 26.07.2013 and 07.01.2016 are set aside. No costs.