Central Administrative Tribunal - Delhi
Harish Kumar vs Comm. Of Police on 19 May, 2016
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(OA No.4336/2015)
Central Administrative Tribunal
Principal Bench
OA No.4336/2015
Order Reserved on: 21.04.2016
Pronounced on:19.05.2016.
Hon'ble Mr. Justice M.S. Sullar, Member (J)
Hon'ble Mr. K.N. Shrivastava, Member (A)
Harish Kumar, Constable,
No.2848/OD (PIS No.2880709)
Presently posted at
Office of ACP/S.P. Badli,
Outer District, Delhi Police,
Delhi.
-Applicant
(By Advocate Shri Sahil Mongia)
-Versus-
1. Commissioner of Police,
Police Headquarters,
I.P. Estate,
New Delhi.
2. Deputy Commissioner of Police,
Outer District,
Through Commissioner of Police,
Police Headquarters,
I.P. Estate,
New Delhi.
3. Ins. Ghanshyam,
Enquiry Officer,
Posted at PS Rohini North,
Outer District,
Delhi Police,
Through DCP/Outer District.
-Respondents
(By Advocate Shri N.K. Singh for Smt. Avnish Ahlawat)
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(OA No.4336/2015)
OR DER
Mr. K.N. Shrivastava, Member (A):
This OA has been filed under Section 19 of the Administrative Tribunals Act, 1985. The specific reliefs prayed for by the applicant in the OA read as under:
"1. Setting aside of the impugned order dated 21.10.2015 passed by the respondent no.2 dismissing the representation of the applicant seeking stay of Departmental proceedings initiated against the applicant and now pending.
2. Setting aside/Stay of operation(s) of the order dt. 20.08.2015 passed by the Respondent No.2 till the pendency of case FIR No.09/13 pending before the court of Ld. CMM/New Delhi District, Patiala House Court."
2. The brief facts of the case are as under. 2.1 The applicant is a Constable working in Delhi Police. He was posted in the office of ACP/SP Badli, Delhi since September, 2011. On 14.02.2013, an FIR no.09/13, u/s 420/464/468/471/120-B IPC & Section 66 IT Act was registered at PS Special Cell, Delhi. During the pendency of investigation in case FIR no.09/13, PS, Special Cell, Delhi it came on record that CDRs of total 52 mobiles of various persons were obtained by unauthorized usage of the official email ID of ACP/Samaipur, Badli, Delhi Police by the applicant. Applicant was arrested on 13.11.2013 in connection with the said FIR and he was placed under suspension on the same day. The Chief Metropolitan Magistrate (CMM) Patiala House, granted interim bail to 3 (OA No.4336/2015) the applicant on 17.12.2013 for a period of 15 days, which was later converted into a regular bail on 28.12.2013. The applicant was reinstated on 15.01.2015.
2.2 The Disciplinary Authority (DA), i.e., Deputy Commissioner of Police, Outer Delhi, decided to hold Disciplinary Enquiry (DE) against the applicant under the provisions of Delhi Police (Punishment & Appeal) Rules, 1980 (in short, the 1980 Rules). Accordingly, vide Annexure A-2 order dated 20.08.2015, the DE process was set in motion. The order contained the charges against the applicant, which read as under:
"1. That he misused the official mail id acp-samaipur- [email protected] of ACP/Samaipur Badli and obtained the call detail records of mobile numbers *****1428, *****3895 & *****7019 by unauthorized means during his posting in the office of ACP/Samaipur Badli, Delhi on 19.09.2012.
2. That he obtained the CDRs/SDR of above mentioned three mobiled numbers by using official mail id id acp- [email protected] of ACP/Samaipur Badli and then saved the CDR on official desktop computer.
3. That the CDRs/SDR of the same was sent to co-accused Alok Gupta on his mail id [email protected] by Constable Harish Kumar through his personal mail id [email protected] .
4. That he charged illegal amount of Rs.300/- for giving CDR of one mobile number to co-accused Alok Gupta, who gave the amount in cash to Constable Harish Kumar.
5. That Constable Harish Kumar sent the request for the above mentioned numbers in the name of HC Madan Lal posted at PS KNK Marge, Delhi.
6. That Constable Harish Kumar did not inform ACP/Samaipur Badli about the accessing of CDRs/SDR of abovementioned mobile numbers.4
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7. That Constable Harish Kumar used to contact co- accused Alok Gupta on his mobile number 9953431516 from his own mobile number 9810483272.
8. That the CDRs of above said phone numbers were ultimately reached to accused Neeraj Nayar after passing the same to various other unauthorized persons (i.e. co-accused Puneet Verma, Arpit Sharma @ Aditya).
9. That Constable Harish Kumar misused his official powers with ulterior motive by obtaining and supplying the CDRs of various other persons to unauthorized persons/co- accused persons for some illegal monetary considerations"
2.3 In the said order, the DA also appointed Inspector Ghanshyam Meena (respondent no.3) as the Enquiry Officer (EO).
2.4 The applicant has filed the instant OA, praying, inter alia, for staying the DE proceedings on the ground that the facts and evidence which are going to be used in the DE proceedings are the same that are going to be used in the trial before the criminal court later and thus his case in the criminal court would get prejudiced if any adverse order is passed in the DE proceedings.
3. Pursuant to the notices issued, the respondents entered appearance and filed their reply. Thereafter the applicant filed his rejoinder. With the completion of the pleadings, the case was taken up for hearing the arguments of the parties on 21.04.2016. Shri Sahil Mongia, learned counsel for the applicant and Shri N.K. 5 (OA No.4336/2015) Singh for Mrs. Avnish Ahlawat, learned counsel for the respondents argued the case.
4. The main argument put-forth on behalf of the applicant was that the applicant's case will get prejudiced in the criminal court, as the facts and evidence which are going to be used in the DE proceedings are also going to be used in the criminal court. To buttress his argument, the learned counsel placed reliance on the judgment of the Hon'ble Supreme Court in the following cases:
i) Kusheshwar Dubey v. Bharat Cooking Coal Ltd., [(1998) 4 SCC 319] wherein the Hon'ble Supreme Court has held that:
"In the instant case, the criminal action and the disciplinary proceedings are grounded upon the same set of facts. We are of the view that the disciplinary proceedings should have been stayed and the High Court was not right in interfering with the trial court's order of injunction which had been affirmed in appeal."
ii) Avinash Sadashiv Bhosle (D) Thr. LRs v. Union of India & Ors., [2012) 13 SCC 142 wherein it has been laid down that:
"This Court recently reiterated the legal principle that departmental proceedings can be conducted simultaneously to the criminal trial in the case of Divisional Controller, Karnataka State Road Transport Corporation Vs. M.G.Vittal Rao (supra). In this case, making reference to almost all the previous precedents, this Court has reiterated the legal position as follows:-6
(OA No.4336/2015)
(a) There is no legal bar for both proceedings to go on simultaneously.
(b) The only valid ground for claiming that the disciplinary proceedings may be stayed would be to ensure that the defence of the employee in the criminal case may not be prejudiced. But even such grounds would be available only in cases involving complex questions of facts and law.
(c) Such defence ought not to be permitted to unnecessarily delay the departmental proceedings. The interest of the delinquent officer as well as the employer clearly lies in a prompt conclusion of the disciplinary proceedings.
(d) Departmental proceedings can go on simultaneously to the criminal trial, except where both the proceedings are based on the same set of facts and the evidence in both the proceedings is common."
The learned counsel for the applicant pleaded that in the interest of justice, the ongoing DE proceedings against the applicant may be stayed pending disposal of the case in the criminal court.
5. Per contra, the learned counsel for the respondents quoted several judgments of the Hon'ble Supreme Court to say the criminal proceedings and the DE proceedings can be started simultaneously and the two can go on parallely. The gist of these judgments is as under:
a) In Delhi Cloth & General Mills Ltd. V. Kushal Bhan, [AIR 1960 SC 806], it was acknowledged that it was not a principle of natural justice "that an employer must wait for the decision at least of the criminal trial court before taking action against an employee."
However, it was observed by the Supreme Court that "if 7 (OA No.4336/2015) the case is of grave nature or involves questions of fact or law, which are not simple, it would be advisable for the employer to await the decision of the trial court, so that the defence of the employee in the criminal case may not be prejudiced."
b) In State of Rajasthan v. B.K. Meena, [(1996) 6 SCC 417], the Hon'ble Supreme Court after analyzing the relevant case law, observed as under:
"It would be evident from the above decisions that each of them starts with the indisputable proposition that there is no legal bar for both proceedings to go on simultaneously and then say that in certain situations, it may not be 'desirable', 'advisable' or 'appropriate' to proceed with the disciplinary enquiry when a criminal case is pending on identical charges. The staying of disciplinary proceedings, it is emphasised, is a matter disciplinary proceedings, it is emphasised, is a matter to be determined having regard to the facts and circumstances of a given case ad that no hard and fat rules can enunciated in that behalf. The only ground suggested in the above questions as constitution a valid ground for staying the disciplinary proceedings is "that the defence of the employee in the criminal case may not be prejudiced." This ground has, however, been hedged in by providing further that this may be done in cases of grave nature involving questions of fact and law. In our respectful opinion, it means that not only the charges must be grave but that the case must involve complicated questions of law and fact. Moreover, 'advisability', 'desirability' or 'propriety', as the case may be, has to be determined in each case taking into consideration all the facts and circumstances of the case. The ground indicated in D.C.M. and Tata Oil Mills is not also an invariable rule. It is only a factor which will go into the scales while judging the advisability or desirability of staying the disciplinary proceedings. One of the contending consideration is that the disciplinary enquiry cannot be - and should not be delayed unduly. So far as criminal cases are concerned, it is well- known that they drag on endlessly where high officials or persons holding high public offices involved. They get bogged down on one or the other ground. They hardly ever reach a prompt conclusion. That is the reality inspite of repeated advice and admonitions from this Court and the High Courts. If a criminal case is unduly delayed that may itself be a good ground for going ahead with the disciplinary enquiry even where the disciplinary proceedings are held over at an earlier 8 (OA No.4336/2015) stage. The interests of administration and good government demand that these proceedings are concluded expeditiously. It must be remembered that interests of administration demand that the undesirable elements are thrown out and any charge of misdemeanor is enquired into promptly. The disciplinary proceedings are meant not really to punish the guilty but to keep the administrative machinery unsullied by getting rid of bad elements. The interest of the delinquent officer also lies in a prompt conclusion of the disciplinary proceedings. If he is not guilty of the charges, his honour should be vindicated at the earliest possible moment and if he is guilty, he should be dealt with promptly according to law. It is not also in the interest of administration that persons accused of serious misdemeanor should be continued in office indefinitely, i.e., for long periods awaiting the result of criminal proceedings. It is not in the interest of administration. It only serves the interest of the guilty and dishonest. While it is not possible to enumerate the various factors, for and against the stay of disciplinary proceedings, we found it necessary to emphasise some of the important considerations in view of the fact that very often the disciplinary proceedings are being stayed for long periods pending criminal proceedings. Stay of disciplinary proceedings cannot be, and should not be, a matter of course. All the relevant factors, for and against, should be weighed and a decision taken keeping in view the various principles laid down in the decisions referred to above."
c) In Depot Manager APSRTC v. Mohd. Yousuf Miya, [(1997) 2 SCC 699], it was reiterated as under:
"It is not, therefore, desirable to lay down any guidelines as inflexible rules in which the departmental proceedings may or may not be stayed pending trial in criminal case against the delinquent officer. Each case requires to be considered in the backdrop of its own facts and circumstances. There would be no bar to proceed simultaneously with departmental enquiry and trial of a criminal case unless the charge in the criminal trial is of grave nature involving complicated questions of fact and law."
d) Kendriya Vidyalaya v. T. Srinivas, [(2004) 7 SCC 442].
e) H.P.C.L. v. Sarvesh Berry, [(2005 (10) SCC 471].
f) NOIDA Entrepreneurs Association v. NOIDA, [(2007) 10 SCC 375.] In these judgments also, the Hon'ble Supreme Court has given the same ruling that criminal trial and 9 (OA No.4336/2015) departmental proceedings against a delinquent Government employee can proceed simultaneously. It was also submitted that a Full Bench of this Hon'ble Tribunal in the case of ASI Sukhdev Singh & Another v. Govt. of NCT of Delhi & Others, [OA No.2816/2008, decided on 18.02.2011] has also held that the departmental proceedings and criminal proceedings can go on simultaneously. The learned counsel also drew our attention to the direction of Commissioner of Police, Delhi contained in the Circular dated 22.09.2009 (page 191 of the paper-book) to all the subordinate police officers that DE proceedings can be conducted against the delinquent police officials who are also facing criminal charges. Concluding his arguments, the learned counsel submitted that the applicant has approached this Tribunal at a very preliminary stage and in view of the rulings of the Hon'ble Supreme Court cited by him and judgment of Full Bench of the Tribunal in the case of ASI Sukhdev Singh (supra), the prayers made in the OA may be denied and the OA may be dismissed.
6. We have considered the arguments put-forth by the learned counsel of the parties and have also perused the pleadings and the documents annexed thereto. The charge against the applicant is that he has 10 (OA No.4336/2015) unauthorizedly obtained the CDR details of mobile nos. *****1428, *****3895 & *****7019 misusing the official email ID of ACP/Samaipur, Badli. The information furnished by the mobile phone companies pursuant to the e-mails sent purportedly by the applicant are also on record.
7. The basic issue, as indicated in the Annexure A-2 order containing the charge to be considered during the DE proceedings, would be as to whether the applicant has violated the provisions of the 1980 Rules. On the other hand, in the criminal case, several other aspects are going to be investigated, examined and placed before the criminal court for consideration vis-a-vis the FIR, such as misuse of the information procured illegally, conspiracy angle etc. In view of the judgment of Full Bench of this Tribunal in ASI Sukhdev Singh (supra), wherein various judgments of the Hon'ble Supreme Court have been considered, we are of the opinion that the DE proceedings should be allowed to proceed, as such proceedings are not going to prejudice the case of the applicant in the criminal court.
8. In view of the discussions in the foregoing paras, we hold that there is no substance in the OA and the same is accordingly dismissed.
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(OA No.4336/2015)
9. No order as to costs.
(K.N. Shrivastava) (Justice M.S. Sullar)
Member (A) Member (J)
'San.'