Central Administrative Tribunal - Delhi
Rajbir Singh vs Govt. Of Nctd on 25 October, 2021
1 O.A. No.618/2021
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No.618
618 of 2021
M.A. No.783 of 2021
Orders reserved on : 04.10.2021
.10.2021
Orders pronounced on ::25.10.2021
0.2021
(Through Video Conferencing)
Hon'ble Mr. A.K. Bishnoi, Member (A)
Hon'ble Mr. R.N. Singh, Member (J)
Rajbir Singh, aged 52 years,
ASI, Delhi Police, No. 1068/D (PIS No.28880770)
S/o Late Shri Daya Ram,
r/o VPO Mandauthi, Distt. Jhajjar Haryana
Group 'C'
... Applicant
(through Advocate Shri Sachin Chauhan
Chauhan)
Versus
us
1. Govt. Of NCT of Delhi,
Through the Chief Secretary,
A
A-Wing, 5th Floor, Delhi Secretariat,
New Delhi-110113.
Delhi
2. The Commissioner of Police,
PHQ, I.P. Estate, New Delhi.
3. The Deputy Commissioner
Commissioner of Police,
Police Control Room, Delhi
through Commissioner of Police,
PHQ, I.P. Estate, New Delhi.
4. The Enquiry Officer,
Sh. Satender Yadav
ACP/WR/PCR,
PS Mayapuri, Delhi.
... Respondents
(through Advocate Shri Amit Anand
Anand)
2 OA No-618/2021
ORDER
Hon'ble Mr. R.N. Singh, Member (J) In the present OA filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant, who is working as ASI (Executive) with the respondents, has challenged the parallel departmental inquiry, vide order dated 3.3.2021 (Annexure A/1) and the Memorandum dated 5.3.2021 (Annexure A/2). The applicant has prayed for the following reliefs:-
8. "i) quash and set-aside the order No. 31788-
837/HAP/P-II/PCR dated 9.12.2020 as well as the order No. 6120-6159/HAP(P-II)/PCR dated 3.3.2021 (including summary of allegation); or to direct the respondents that the present Department enquiry reopened vide an order dated 3.3.2020 be kept in abeyance till the conclusion criminal trial in FIR No. 288/2020; or direct the respondents not to examine any other witness in the Department enquiry till the time the entire evidence is recorded in criminal trial arising out of FIR No.288/2020 PS Hauz Khas;
AND/OR
ii) Any other relief which this Hon'ble Court deems fit and proper may also awarded to the applicant."
9. INTERIM ORDER PRAYED FOR:-
9.1 To direct the respondents to not to proceed in the Departmental Enquiry re-opened vide an order dated 3.3.2021 till the final outcome of present O.A.; and/or 3 OA No-618/2021 9.2 Any other relief which this Hon'ble Court deems fit and proper may also awarded to the applicant."
2. The brief facts, which are not in dispute and which can be derived from the pleadings on record, are that the case FIR No. 288/2020 under Section 387/120B IPC was registered on 28.08.2020 with Hauz Khas Police Station on a complaint of one Mr. Himanshu Sharma. The role of the applicant in the said case FIR and allegations against him in the impugned departmental proceedings would be evident from the summary of allegations enclosed with the Memorandum dated 05.03.2021 (Annexure A/2) which read as under:-
"It is alleged against ASI Rajbir Singh No. 1068-D, PIS No. 28880770 that while posted in South Zone/PCR, New Delhi, a case vide FIR NO. 288/20 dated 28.06.2020 U/s 387/120-B IPC, Police Station Hauz Khas was registered on the complaint of Mr. Himanshu Sharma S/o Mr. Mohinder Sharma R/o F- 30, Hauz Khas Enclave, New Delhi. During the course of investigation, it has been found about the involvement of ASI Rajbir Singh in the above mentioned case. He has well acquaintance with the complaint of the case also. On 14.0-7.2020, he had called the complainant and tried to talk about the extortion matter; hence complainant got suspicious about ASI Rajbir Singh's role and inform the police about his involvement. On this, ASI Rajbir Singh was called in police station Hauz Khas but he did not give any satisfactory reply about the exchange of calls made between complainant as well as with accused Parmod @ Kale. Further request was made by the I.O. for CDR & CAF to TSU/South Distt. Of ASI Rajbir Singh's mobile NO.9999998930. During the course of 4 OA No-618/2021 investigation by the local police, it was revealed that three mobile phones i.e. 8295450691 from 22.8.2019 to 17.10.2019, 9991561119 from 30.8.2019 to 01.01.2020 & 9350635962 from 01.03.2020 to 03.07.2020 were used by accused Pramod @Kale. The CDR analysis of these numbers revealed that ASI Rajbir Singh mobile NO.9999998930 was in continuous touch with accused Pramod @ kale in the present case matter that the calls were exchanged between alleged Parmod @ kale and ASI Rajbir Singh on 27.06.2020 and 28.06.2020. On 27.06.2020 at 06:41 PM, accused Parmod @ kale made a call from 9350635968 to ASI Rajbir Singh on his mobile NO. 9999998930 from Rohtak, Haryana. The phone & SIM of which was used to make extortion call was also snatched around the same time from Rohtak, Haryana. On 28.06.2020 at 09.59 AM, accused Parmod @ Kale made a call from 9350635968 to ASI Rajbir Singh on his mobile NO. 9999998930, at that time his location was in VPO: Daryapur, Bahadurgarh, Haryana. At 10.45 AM, location of accused Parmod @ Kale was in Bhiwadi, Rajasthan. AT 11:56 AM, ASI Rajbir Singh made a call to Parmod @ Kale. It is further alleged that ASI RAjbir Singh had also came to police station Hauz Khas on 12.07.2020 for pairvi of Pardeep - brother of accused Parmod @ kale, who was brought to the police station for interrogation. On 06.11.2020, alleged Parmod @ Kale was arrested in the above said case and on sustained interrogation, Parmod @ Kale has disclosed about the role of ASI Rajbir Singh and he stated that mobile number of victim Mr. Mahender Sharma (father of the complainant) was provided by ASI Rajbir Singh and he told about his work profile also. He further stated that ASI Rajbir Singh told him to make extortion call and assured that extortion amount will be easily delivered and also told him that to fire upon Mr. Mahender Sharma's son, whose address and car number would be made available, if extortion money was not paid. During the investigation, sufficient evidence about the involvement of ASI Rajbir Singh No.1068-D was came to the investigation, subsequently ASI Rajbir Singh was arrested in the present case on 20.11.2020.
The above act on the part of ASI Rajubir Singh No. 1068-D, PIS No. 28880770 amounts to gross 5 OA No-618/2021 misconduct, negligence, indiscipline, indulgence in criminal activities and an act unbecoming of a police officer, in violation of Rule 3 of CCS Conduct Rule- 1964 which renders him liable to be dealt with departmentally under the provision of Delhi Police (Punishment and Appeal) Rules, 1980."
3. The departmental inquiry was initiated against the applicant vide order dated 09.12.2020, however, the same was kept in abeyance vide order dated 17.12.2020 due to his being in judicial custody. On 01.02.2021, when the applicant joined the service after his release from the judicial custody, the respondents have reopened/resumed the departmental proceedings from where it was ordered to be kept in abeyance vide impugned order dated 03.03.2021 (Annexure A/1). The applicant preferred a representation before the disciplinary authority requesting to keep the departmental inquiry in abeyance till the conclusion of the criminal trial. However, without awaiting the decision of the disciplinary authority on the said representation, he has approached this Tribunal by way of the present OA. The said representation of the applicant is stated to have been considered by the disciplinary authority, however, the request of the applicant was not acceded to and the applicant was informed about the decision, vide order dated 16.03.2021.
6 OA No-618/2021
4. Pursuant to notice from this Tribunal, the respondents have filed their counter reply opposing the OA and have prayed for dismissal thereof.
5. The applicant has filed rejoinder. In the rejoinder, the applicant has assailed that the respondents' order dated 16.03.2021 which was received by him on 18.03.2021, i.e., after filing of the OA on 16.03.2021, is absolutely non- speaking and passed without application of any mind. In the rejoinder, besides reiterating the submissions and grounds taken in the OA, the applicant has asserted that the investigation in the said case FIR is over in a limited time and only charge is to be framed. It is contended in the rejoinder that the next date of hearing before the learned Trial Court was 05.06.2021. During the pendency of the OA with liberty from this Tribunal, the applicant has filed a few order sheets of the learned Trial Court on 16.08.2021. It is evident from those order sheets that the bail was granted to the applicant vide order dated 11.09.2020 wherein the learned Trial has recorded that investigation is complete and chargesheet has been filed and trial may take some time. The matter was also listed on 21.12.2020 when the same was taken up through video 7 OA No-618/2021 conferencing. However, the matter was simply adjourned and was posted for 05.06.2021. Thereafter the matter was listed on 05.07.2021, 10.08.2021and thereafter the matter was posted on 13.08.2021.
6. Learned counsel for the applicant has argued that though the applicant is having an unblemished, glorious and very decorated service record of more than 30 years, he has been implicated in the aforesaid case FIR falsely. The applicant has assailed the reopening/resuming the departmental proceedings as if the same is not stayed, he shall be compelled to disclose the defence in the departmental inquiry which may be used against him in the criminal trial and, therefore, the same is illegal and arbitrary inasmuch as the applicant's interest will severely be prejudiced in the criminal trial. He has also argued that the prosecuting agency in both the cases, i.e., criminal as well as departmental, is same and sitting over the representation of the applicant for keeping the departmental inquiry in abeyance is wrong, illegal, arbitrary and unjustified. Learned counsel for the applicant has emphasised and has drawn our attention to the unblemished and glorious career of the applicant. He 8 OA No-618/2021 has also argued that the allegations in criminal case and those in the departmental case are same and/or on the same set of facts and list of documents and list of evidence are also same in both the proceedings. Inquiry officer has also examined two formal witnesses in the departmental inquiry, and now the main witnesses are to be examined, and on examination of the main witnesses, the applicant will be required to cross-examine them and, therefore, if the departmental action is not stalled, the applicant's interest shall severely be prejudiced case for involving in the criminal trial. Learned counsel for the applicant has placed reliance upon the law laid down by the Hon'ble Apex Court in the case of Capt. M. Paul Anthony vs Bharat Gold Mines Ltd. & Anr., reported in JT 1999 2 SCC 456, particularly paragraph 22. He has also placed reliance on the Order/Judgment dated 17.10.2013 in OA 1534/2003 in the case of Constable Achyetananad Prasad & Anr. vs. Secretary, GNCTD & Ors. as well as on the Order/Judgment dated 27.05.2015 in OA 1978/2015 in the case of Ram Kishan Sharma vs. Govt. Of NCT of Delhi & Ors, of this Tribunal. Learned counsel for the applicant has further argued that as per the provisions of Rule 12 of the Delhi Police (Punishment & 9 OA No-618/2021 Appeal) Rules, 1980 (hereinafter referred to as 'the Rules of 1980'), even after acquittal of subordinate police official in the criminal case, it is open to the disciplinary authority to deal with him departmentally and also in terms of the provisions of Rule 11 of the Rules of 1980 when a subordinate rank has been convicted in a criminal case involving moral turpitude or on charge of disorderly conduct in a state of drunkenness or in any criminal case, the disciplinary authority can consider the nature and gravity of the offence, and if he is of the opinion that the offence is such as would render further retention of the convicted police officer in service, prima facie undesirable, the disciplinary authority may make an order dismissing or removing such person from service forthwith. In this background, he has argued that if the impugned orders, vide which the respondents have reopened/resumed the departmental inquiry against the applicant, are stalled, no prejudice is likely to be caused to the respondents whereas in case of non-stalling of the same, the applicant is likely to suffer irreparable loss.
7. Learned counsel for the applicant has further added that the allegations levelled in the criminal case involving 10 OA No-618/2021 complicated questions of law and facts, and, therefore, keeping in view the law laid down by the Hon'ble Apex Court in Cap. M. Paul Anthony (supra) and in view of the orders/judgments of this Tribunal, referred to hereinabove, the impugned departmental proceedings deserve to be stayed. He further added that delay in framing of the charge(s) by learned Trial Court and/or proceeding thereafter is also on account of pandemic Covid-19 which has disturbed normal functioning of all including Hon'ble Court (s).
8. Per contra, Sh. Anand, learned counsel for the respondents has, at the outset, invited our attention to second paragraph of the impugned summary of allegations and has contended that the same clearly reveals that the departmental proceedings are not only based on the allegations levelled against the applicant in the said case FIR but also on account of gross misconduct, negligence and indiscipline and, therefore, merely for the reason that certain allegations in the criminal case FIR and those in the departmental proceedings are common and/or based on same set of witnesses/documents, the departmental proceedings are not liable to be stayed. He has further 11 OA No-618/2021 contended that the applicant has made a representation against the impugned order dated 03.03.2021 for not resuming/re-opening of the departmental proceedings. However, even without awaiting the outcome thereof, he has rushed to the Tribunal within 15 days and the said representation has been considered and rejected by the competent authority, vide order dated 16.03.2021 as noted from the assertions of the respondents in the counter reply. However, the applicant has not chosen to challenge the same, if found aggrieved thereby. Further, it is an admitted case that till date charges have not been framed against the applicant by the learned Trial Court and law does not permit that departmental proceedings are required to be stayed for indefinite period. He also submits that the judgement of the Hon'ble Apex in Capt. M. Paul Anthony (supra) clearly provides that if criminal case does not proceed or its disposal is unduly delayed, the departmental proceedings can be resumed to proceed further so that it can be concluded at an early date. He has argued that that the orders/judgements of this Tribunal, referred to and relied upon by the learned counsel for the applicant, are of no help to the applicant inasmuch as the said orders/judgments have not taken 12 OA No-618/2021 into consideration the law laid down by the Hon'ble Apex Court and by various Hon'ble High Courts. He has filed a compilation of the following Judgements and argued that in view of the law laid down by the Hon'ble Courts therein, the OA is utter misuse of process of law and the same deserves to be dismissed:-
1. Order/Judgement dated 19.09.2011 of Hon'ble High Court of Judicature at Madras in Writ Petition No.39807/2002 in the case of R. N. Prasad vs. Indian Overseas Bank & Ors.;
2. Order/Judgement dated 26.02.2008 of Hon'ble High Court of Judicature at Madras in Writ Petition No.222/2008 in the case of K. Ganesan vs. Chairman and Managing Director, Nuclear Power Corporation of India Ltd. & Anr.;
3. Order/Judgement dated 10.10.2014 of Hon'ble High Court of Judicature at Madras in Writ Petition No.22311/2014 in the case of Jayalakshmi Vs. State of Tamil Nadu & Anr.;
4. Order/Judgement dated 26.06.2020 of Hon'ble High Court of Himachal Pradesh, Shimla in CWP No.474/2020 in the case of Gian Chand Thakur vs. State of HP & Ors.;
13 OA No-618/2021
5. Order/Judgement dated 25.08.2006 of Hon'ble High Court of Punjab & Haryana, in CWP No.474/2020 in the case of ASI Ranvir Singh vs. State of Haryana & Ors.
6. Order/Judgement dated 03.02.2005 of Hon'ble High Court of Jammu & Kashmir in the case of Fazal Ahmed vs. State of Jammu & Kashmir & Anr., reported in 2005 (2) JKJ 560; and
7. Order/Judgement dated 09.08.2011 of Hon'ble High Court of Judicature at Madras in Writ Petition (MD) No.2893/2006 in the case of C. Chandrasekaran vs. The Deputy Inspector General of Police & Anr.
9. We have perused the pleadings on record, considered submissions made and also the judgments relied upon by the learned counsels for the parties.
10. Learned counsels for both the parties have placed reliance upon the law laid down by the Hon'ble Apex Court in Capt. M. Paul Anthony (supra). The Hon'ble Apex Court after considering their decisions in a series of cases have concluded in the said case as under:-
"22. The conclusions which are deducible from various decisions of this Court referred to above are:
(i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is 14 OA No-618/2021 no bar in their being conducted simultaneously, though separately.
(ii) If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case.
(iii) Whether the nature of a charge in a criminal case is grave and whether complicated questions of fact and law are involved in that case, will depend upon the nature of offence, the nature of the case launched against the employee on the basis of evidence and material collected against him during investigation or as reflected in the charge sheet.
(iv) The factors mentioned at (ii) and (iii) above cannot be considered in isolation to stay the departmental proceedings but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed.
(v) If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date, so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty, administration may get rid of him at the earliest."
11. In view of the law laid down by the Hon'ble Apex Court in Capt. M. Paul Anthony (supra), it is evident that disciplinary proceedings and criminal case can proceed simultaneously as a matter of rule. However, exceptions to that are there as provided under paragraphs 22 (ii) and
(iii) and in paragraph 22 (iv), it has also been mandated by 15 OA No-618/2021 the Hon'ble Apex Court that factors in paragraphs 22 (ii) &
(iii) cannot be considered in isolation to stay the departmental proceedings but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed. Hon'ble Apex Court in paragraph 22 (v) has ruled that if criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings can be resumed and proceeded with so as to conclude them at an early date. Thus, even in the case of Capt. M. Paul Anthony (supra), emphasis is there on expeditious conclusion of departmental proceedings, if initiated by the respondents.
12. In the case of Shri Ashish Anan vs. Union of India & Ors., OA No.1675/2017 decided on 07.08.2018 by this Tribunal, this Tribunal in paragraph 4 clearly recorded that though the initiation of simultaneous criminal proceedings and departmental proceedings cannot be found fault with, however, in the facts and circumstances, the Tribunal has stayed the departmental proceedings. However, in the case of Mr. Jitender Kumar Vs. Govt. Of NCT of Delhi & Ors. in OA No.3368/2017 decided on 04.01.2019 by this Tribunal, the same view has been 16 OA No-618/2021 taken by the Tribunal that if both the proceedings are based on the same set of facts, it is better that departmental proceedings are kept in wait till the criminal case is disposed of, however, that is subject to the rider that in case the disposal of the criminal case is unduly delayed, the departmental proceedings can be resumed. The Tribunal in the said case noted that the applicant was to retire in July, 2020 and the criminal case was found to be in an advanced stage and, therefore, departmental proceedings were stayed.
13. In the case of Firoz Ahmed vs. Union of India & Ors. [WP No.15194 (W) of 2013 decided on 26.08.2013 by the Hon'ble High Court of Calcutta], the Hon'ble High Court has also referred the Judgement of the Hon'ble Apex Court in Capt. M. Paul Anthony (supra). In the said case, in paragraph 7, their Lordships have considered the prejudice likely to be caused to the petitioner and, thus, the Hon'ble High Court has, though stayed the departmental proceedings, however, it has been clarified that if the trial is being protracted due to reasons directly attributable to the petitioner, it shall be open to the respondents to set the ball in motion by resuming the 17 OA No-618/2021 departmental enquiry without obtaining permission from the Court.
14. In the case of Ram Kishan Sharma (supra), though this Tribunal referred to the law laid down by the Hon'ble Apex Court in Capt. M. Paul Anthony (supra) and has also recorded the provisions of Rules 11 & 12 of the Rules of 1980, however, in the said case this Tribunal has not considered the fact that in spite of the provisions of rules 11 & 12 of the Rules of 1980 and statute/Rules has provided that once delinquency comes to the notice of the competent authority, competent authority i.e. disciplinary authority is having jurisdiction to proceed against the delinquent departmentally and also clearly provides that departmental proceedings as well as criminal proceedings may proceed simultaneously, of course, subject to the rider and exceptions as provided under rules and the law. In paragraph of 5 of R. N. Prasad's case (supra), the Hon'ble High Court of Madras has recorded that legal position operating in the field is no longer res integra to the effect that the departmental proceedings pending criminal proceedings does not warrant any automatic stay. Before the departmental proceeding is stayed, it is 18 OA No-618/2021 required to be considered as to whether the charges as also the evidence in both the proceedings are common; as to whether any complicated question of law is involved in the matter and whether the delay is there or not in conclusion of the criminal proceedings, is also required to be considered. Similarly, learned counsel for the respondents has invited our attention to various paragraphs of those judgments.
15. In the case of Gian Chand Thakur (supra), the Hon'ble High Court of Himachal Pradesh, after considering the law laid down by the Hon'ble Apex Court in catena of cases as noted therein, has held as under:-
"7......The departmental proceedings initiated against the petitioner will only examine and determine as to whether his act and conduct amounted to misconduct as per the mandate of H.P. Police Act and other applicable service rules and whether such act has rendered the petitioner liable for imposition of any penalty under the service rules. The allegations against the petitioner in the departmental enquiry are to be proved on preponderance of probabilities on the basis of documents and witnesses.
Whereas, charges in the criminal case presently at the investigation stage are to be proved on the basis of witnesses and evidence to be led during trial, but beyond all reasonable doubts. It cannot be even said at this stage that both the proceedings are based on the same set of evidence.
Considering all these aspects and the fact that the criminal case is still under investigation, the 19 OA No-618/2021 departmental proceedings cannot be unduly delayed. Hence, the prayer of the petitioner for keeping the departmental proceedings in abeyance till the recording of statements in the criminal case is rejected."
16. In ASI Ranvir Singh (supra), the Hon'ble High Court in paragraph 8 has ruled that:-
"8. When the facts of the present case are examined in the light of the principles laid down in Capt. M. Paul Anthony's case (supra) and other judgments noticed above, we cannot resist the conclusion that the instant petition lacks merit and is, thus, liable to be dismissed. There is no charge yet framed by the criminal Court which may constitute the basis for comparing the same with the charges the delinquent officer is facing in the departmental proceedings. The names of the witnesses are yet to surface in the criminal trial. We are further of the view that departmental proceedings against a member of disciplinary force like the Police, cannot be permitted to wait endlessly till the conclusion of criminal trial, which may take its own time because it would not be in the interest of Police Administration that a person like the petitioner, who is charged with serious misdemeanour should be continued in office indefinitely which the criminal proceedings are likely to consume. Staying the proceedings at this stage would only serve the interest of the accused. On the basis of the aforementioned factors it is not possible for us to accept the plea raised by the petitioner that the departmental proceedings shall remain stayed till the conclusion of the criminal proceedings. Therefore, we do not find any merit in the instant petition."
17. In the present case, it is undisputed that though the applicant has represented against the order dated 03.03.2021, however, before any decision thereon of the 20 OA No-618/2021 respondents, the applicant has filed the present OA and the decision of the respondents dated 16.03.2021 has not been challenged by the applicant even after having received a copy thereof, as evident from the rejoinder. It is also very much evident that even as on date, the charge has not been framed by the learned Trial Court in the aforesaid case FIR and from the various order sheets of the learned Trial Court, as brought on record, it is evident that even during the Covid-19 pandemic, the matter has been taken up, of course, through virtual mode. It cannot be construed that trial has not progressed or concluded on account of Covid-19 pandemic. One cannot infer that the trial in the case FIR is likely to be concluded shortly. Departmental proceedings were initiated in December, 2020 and after release of the applicant from the judicial custody, it has been resumed/re-opened vide impugned order dated 03.03.2021. However, the status and developments in the case FIR as well as in the departmental proceedings is stated to be the same which was there at the time of filing of the OA in the month of March, 2021. Moreover, it is worth to note that applicant could have availed the remedies for expeditious action in the case FIR as well. Even if certain allegations, list of 21 OA No-618/2021 documents and witnesses are common in both the proceedings are same, the same is not sufficient to stay the departmental proceedings in the facts and circumstances of the present case. The judgments relied upon by the learned counsel don't help the applicant.
18. In the facts and circumstances, we are of the considered view that OA lacks merit and accordingly, the same is dismissed. However, in the facts and circumstances, there shall be no order as to costs.
19. Pending MA also stands disposed of accordingly.
(R.N. Singh) (A.K. Bishnoi) Member (J) Member (A) /ravi/