Central Administrative Tribunal - Delhi
Raj Singh vs Govt. Of Nct Of Delhi on 22 January, 2013
CENTRAL ADIMINSTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI
OA NO.1560/2012
NEW DELHI THIS THE 22ND DAY OF JANUARY,2013
HONBLE MR.G.GEORGE PARACKEN, MEMBER(J)
HONBLE MR. SHEKHAR AGARWAL, MEMBER(A)
Raj Singh
PIS No.28990554
Aged about 48 years
Constable (Exe.) of Delhi Police,
S/o Sh. Pyare Lal
R/o A-22, R.K. Puram,
Sector-12, Police Colony,
New Delhi. ... Applicant
(By Advocate: Sh. Anil Singal)
VERSUS
Govt. of NCT of Delhi
Through Commissioner of Police
PHQ, IP Estate, New Delhi.
Special Comm. Of Police
Armed Police, PHQ,
IP Estate, New Delhi.
3. D.C.P. (3rd Bn. DAP)
Vikas Puri Lines, New Delhi.
4. D.C.P.(South West Distt.)
Through Commissioner of Police
PHQ, IP Estate, New Delhi. Respondents
(By Advocate Mrs. Renu George)
ORDER(ORAL)
By Mr.G.George Paracken, Member(J):
The allegation against the Applicant in the Original Application was that one accused Nitin managed to escape from the custody of himself and one Constable Dharambir on 19.11.2008. An FIR No. 102/08 was lodged against the accused in P.S. Palam Village and a criminal case was initiated against him u/s 223/224 IPC. While offence u/s 224 IPC was against the accused, the office u/s 223/224 IPC was against the Applicant and Constable Dharamvir. As both the accused Nitin and the co-accused Applicant and Constable Dharamvir did not plead guilty, criminal trial was held against them. Meanwhile, the Respondents, vide Annexure A-1 order dated 02.09.2009 ordered to deal with them departmentally for the following charge:-
I, T.R. Poonia, Inspector Inv. Kapashera charge you ct. Dharamvir No. 1943/SW (PIS No.28862180) and ct. Raj Singh No.1187/SW (PIS No.28990554) under the provision of Delhi Police (Punishment & Appeal) Rules, 1980 that on 18/11/2008 accused Nitin S/o Ram Karan R/o H.No.31 Sultan Garden Najafgarh Delhi was arrested in a case FIR No.44/08 dated 14/1/08 u/s 307/34 IPC PS Palam Village Delhi. The IO SI Rajesh Shukla had taken him on two days P.C. Remand from the concerned court. On 19/11/08 at 6.45 PM vide DD No.20 after conducting investigation accused Nitin was kept under custody of your Ct. Dharamvir No. 1943/SW (PIS No.28862180) and in case of your ct. Raj Singh No.1187/SW (PIS No.28990554) for getting the accused medically examined from DDU Hospital after proper briefing by IO. After medical examination at about 9.00 PM when you both reached near the main gate of police station Palam Village, accused Nitin managed to escape from your custody due to your negligence if you both had been alert, accused Nitin could not have escaped from your custoday a case FIR No.102/08 u/s 223/224 IPC was registered at PS Palam Village in this regard.
2. Simultaneously, criminal trial against the Applicant has also proceeded and the following charge was framed against him by the Trial Judge:-
1. SI Rajesh Shukla obtained the police custody of accused Nitin in FIR No.44/08 on 19.11.09. The accused was sent for medical examination to DDU hospital at about 6.45 pm on the same day in the immediate custody of Const. Raj Singh and Const. Dharamvir (the two co-accused). On return from the hospital, accused Nitin escaped from the custody of the above constables from outside the Palam Village Police Station at about 9.00pm. The accused SI Vidya Dhar (PW-5) vide arrest memo Ex.PW5/D.
2. The original chargesheet was filed with the conclusion that the offence under section 224 IPC was made out against accused Nitin while Constable Raj Singh and Dharamvir were incriminated under section 223 IPC for having negligently suffered accused Nitin to escape. Yet, the two constables were not shown in column No.11 of the chargesheet and instead cited as witnesses. Upon observation of the court recording this discrepancy, a supplementary chargesheet was filed against the two showing them under column 11. In the criminal case, the applicant was acquitted vide judgment dated 29.11.2010 on the ground of no evidence on record. The operative part of the said order read as under:-
11. The crucial question is whether any evidence has emerged to positively incriminate Constable Raj Singh and Constable Dharambir. The answer must be in the negative. If anything it has become evident from the cross examination of PW-4 that the two were handicapped in their control over accused Nitin. Firstly, although custody had been granted to PW-4 he handed over the same to the two constables without any authorization from a superior officer. He then sent them to DDU hospital without granting them any official vehicle. PW-4 admitted that while he used an official vehicle to take the accused to various place during investigation, no such vehicle was provided to Raj Singh and Dharambir. Accused Nitin was not handcuffed either. It must be borne in mind that PW-4 was very aware of the criminal antecedents of Nitin before handing over his custody to the two constables. It is thus fair to conclude that the act of escape by Nitin though a desperate act by him, punishable by under section 224 IPC, was not on account of negligence shown by the two constables.
12. It was held in Durga Prashad Vs. Emperor (1910) 11 Cr.LJ 478, 7 IC 411 that before a person can be convicted under section 223 IPC, it must be shown not only that he was guilty of negligence, but that the escape was at least the natural and probable consequence of his negligence. In the present facts, the prosecution witnesses had failed to point out any negligence or escapes by Nitin as a direct consequence of such negligence. It is not a logical corollary of a person escaping from custody that the same should have been through negligence of the public servants in question. Negligence requires proof which has not been led.
4. However, the Enquiry Officer went ahead with the enquiry against the Applicant under the departmental procedure and reported vide order dated 09.03.2011 that charge has been proved against him. The operative part of the said report reads as under:-
DISCUSSION:-
In all four PWs have been examined in this DE. From the statements of PWs it is proved that on 19/11/08 the accused Nitin has escaped from the custody of both delinquents Ct. Dharambir and Ct.Raj Singh due to their negligence.
CONCLUSION:-
Keeping in view the above facts, evidence on record and depositions of PWs, I am of the considered view that charge framed against the delinquents is proved
5. The Disciplinary Authority accepting the aforesaid report of Enquiry Officer, vide order dated 5.5.2011, imposed the punishment of forfeiture of four years service temporarily upon the applicant. The relevant part of the said order reads as under:-
Keeping in view of the overall facts/circumstances of the case and the charged proved against both delinquents. I, Brahm Singh, Dy. Commissioner of Police, III rd Bn DAP Delhi hereby order to award the punishment of forefeiture of 04 (Four) years approved service permanently upon Constable Raj Singh, No.7710/DAP entailing proportionate reduction in their pay. Their suspension period from 20/11/2008 to 23/08/2009 is also decided as period not spent on duty for all intents and purposes.
Let a copy of this order be given to them free of cost. They can file an appeal against this order to the Special Commissioner of Police, Armed Police Delhi, within 30 days from the date of its receipt on a non-judicial stamp paper valued 0.75 paise by enclosing a copy of this order, if they, so desires.
6. The Applicant made the statutory appeal dated 10.06.2011 against the order of the Disciplinary Authority. He submitted that since there was a judicial verdict on the point of negligence, enquiry officer was unjustified in delivering a divergent and contradictory report. The court in its judgment has categorically held that negligence required proof which has not been led. Even the court has commented in its judgment that no vehicle was provided to take the accused for medical examination. Court also raised the issue of non application of hand cuffs. The Applicant has also quoted Rule 12 of Delhi Police (punishment & Appeal ) Rules 1980 which puts a statutory ban on departmental action after the govt. servant has been acquitted by the court on similar charge and similar evidence.
7. He has also submitted that in the case of Const. Mohan Lal versus Union of India and Others (C.W.No.1265/73) decided on 24.07.1981, the Honble Delhi High Court dealt with a similar issue and held as under:-
Spirit of the provisions of Rule 54 of the Fundamental Rules is that if a delinquent servant is exonerated merely for non-compliance of the technical procedural rules, and is not exonerated on merits, he is not entitled to full pay. Even assuming that the petitioner was acquitted on behalf of doubt, it cannot be said that he is acquitted for non-compliance with the technical rules of procedure. Indeed in criminal law an acquittal on benefit of doubt is complete acquittal on merits.
He has also referred to the judgment of the High Court of Delhi in Kundan Lal versus Union of India and Others, SLR 1982 (1) 573, wherein it was held that acquittal of a government servant on benefit of doubt is a complete acquittal on merits and consequently the concerned government servant shall be entitled to full pay and allowances. The Applicant has also referred to the case of Const. Ramesh Pal No.204/SB, 1248/DAP who was arrested in an Arms Act case and subsequently was acquitted by the court of law. His entire suspension period was treated as period spent on duty and the departmental inquiry was dropped. Again in the case of S.I. Ramesh Chand Meena No.D/3190 who was arrested in case RC No.81(A)/95 DLI u/s 7 and 13(2) r/w 13 (d) of the POC Act on 14.9.95 by the CBI Anti Corruption Unit, the DCP IGI Air Port vide its order No.4701-26/HAP/IGI Air Port/(P-I) dated 12.6.2001, dispensed with the departmental action after the acquittal from the court of Spl. Judge Delhi and treated the entire period of suspension as spent on duty for all intent and purposes.
8. The Appellate Authority, however, while considering the appeal of the Applicant, only reduced the punishment imposed upon him by the Disciplinary Authority to forfeiture of one year approved service temporarily, entailing proportionate reduction in pay for a period of one year and observed as under:-
The departmental action was initiated in the year 2009 whereas the judgment of acquittal was delivered on 29.11.2010 wherein the DE was already in process. The approach and objective in the criminal and departmental proceedings are altogether distinct and different. The judgment quoted by the appellants has no direct bearing in their case, as each case is decided on merits.
9. The Respondents have not disputed the factual matrix of the case as stated by the Applicant. But according to them, departmental enquiry was held against the applicant and his co-defaulter because the approach and objective in the criminal proceedings and disciplinary proceedings are altogether distinct and different. In the disciplinary proceedings, the question is, whether the Government Servant is guilty of such conduct as would merit his removal from service or a lesser punishment, as the case may be, whereas in the criminal proceedings, the question is, whether the offences registered against Government servant are established and if established, what sentence can be imposed on him. Besides, the provisions of Rule 12 of Delhi Police (Punishment & Appeal) Rules, 1980 are not applicable as Section 223 IPC is for negligence and connivance of a police personnel in the escape of an accused whereas, the accused Nitin had escaped from the lawful custody of the applicant and his co-defaulter, as such they were dealt with departmentally on the charge of carelessness and dereliction of duty. Hence, the action of disciplinary authority is fair and justified. Moreover, the applicant misconceived the provision of Rule 29 (3) of Delhi Police (Punishment & Appeal) Rules, 1980. In facts, the provisions of the said rule are not applicable in the case of the Applicant.
10. We have heard the learned counsel for the applicant Shri Anil Singal and learned counsel for the respondents, Mrs. Renu George. In our considered view, Applicants case should have been considered in the light of the provisions contained in Rule 12 of the Delhi Police (Punishment & Appeal) Rules, 1980 and it is reproduced as under:-
12. Action following judicial acquittal- when a police officer has been tried and acquitted by a criminal court, he shall not be punished departmentally on the same charge or on a different charge upon the evidence cited in the criminal case, whether actually led or not unless:-
the criminal charge has failed on technical grounds, or in the opinion of the court, or on the Deputy Commissioner of Police the prosecution witnesses have been won over; or the court has held in its judgment that an offence was actually committed and that suspicion rests upon the police officer concerned; or the evidence cited in the criminal case discloses facts unconnected with the charge before the court which justify departmental proceedings on a different charge; or additional evidence for departmental proceedings is available.
11. In view of the facts and circumstances of the case the Applicant, it does not come within any of the five exceptions of Rule 12 (ibid). The Respondents have not applied their mind at all in this case. The held the departmental enquiry on the ground that there is no bar of holding the same while criminal proceedings have been going against the Applicant. They should have at least reconsidered the matter when the judgment of the Criminal Court acquitting the Applicant became available to them. We are, therefore, of the considered view that the Enquiry Officer, Disciplinary Authority and the Appellate Authority are guilty of non-application of mind in the present case. Once the Criminal Court has held that the charge of negligence again the Applicant was not proved, the effort of the Enquiry Officer to hold that the same charge has been proved is nothing but a misadventure. The unfortunate part of the case is that both the Disciplinary Authority as well as the Appellate Authority have also acted in most mechanical manner and punished the Applicant. The Appellate Authority has first reduced the punishment from forfeiture of 4 years approved service permanently to that of forfeiture of one year approved service temporarily, entailing proportionate reduction in their pay for a period of one year, only to give semblance of application of mind.
11. In the above facts and circumstances, we allow this Original Application. Consequently, the report of the Enquiry Officer and the orders of the Disciplinary Authority and the Appellate Authority are quashed and set aside. The respondents shall restore the entire loss suffered by the Applicant due to their orders by issuing appropriate fresh orders, within a period of two months from the date of receipt of a copy of this order. There shall be no order as to costs.
(Shekhar Agarwal) (G. George Paracken)
Member (A) Member(J)
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