Central Administrative Tribunal - Delhi
Asi Krishan Pal vs Gnct Of Delhi Through on 22 May, 2013
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-3349/2012
Reserved on : 16.05.2013.
Pronounced on :22.05.2013.
Honble Mr. G. George Paracken, Member (J)
Honble Mr. Shekhar Agarwal, Member (A)
ASI Krishan Pal,
S/o late Sh. Sis Ram,
R/o Barrack No.1, ISBT,
Kashmiri Gate, Delhi. . Applicant
(through Sh. Sourabh Ahuja, Advocate)
Versus
1. GNCT of Delhi through
Commissioner of Police,
Police Headquarters, IP
Estate, New Delhi.
2. Addl. Commissioner of Police
Special Branch, Delhi through
Commissioner of Police,
Police Headquarters, IP Estate,
New Delhi.
3. Deputy Commissioner of Police,
Special Branch, Delhi through
Commissioner of Police,
Police Headquarters, IP Estate,
New Delhi. . Respondents
(through Sh. Vijay Pandita, Advocate)
O R D E R
Mr. Shekhar Agarwal, Member (A) The applicant has sought the following relief:-
(a) Quash and set aside the impugned orders mentioned in Para 1 of the OA and
(b) Direct the respondents to reinstate the Applicant back in service and accord him all consequential benefits permissible as per law viz. back wages, seniority, promotion etc. And award costs of the proceedings and
(d) pass any other order/direction which this Honble Tribunal deem fit and proper in favour of the applicant and against the respondents in the facts and circumstances of the case.
2. Facts of the case are that the applicant (ASI Krishan Pal) joined Delhi Police on 07.12.1976 as a Constable. Gradually he got promoted to the rank of ASI in 2002 and had been working as such. While he was posted in Special Branch of Delhi Police, he got implicated in two criminal cases vide FIR No.169 dated 12.12.2004 u/s 419/420/468/471/120-B IPC & 12 PP Act and FIR No. 508/04 dated 21.11.2004 u/s 419,420/468/471/120-B IPC & 12 PP Act. A departmental enquiry qua FIR No. 508/04 was initiated against the applicant vide order dated 07.01.2005. Enquiry Officer (EO) submitted his findings and proved the charge against the applicant but no final order was passed in the said enquiry. The said departmental enquiry was ordered to be held in abeyance till the conclusion of the criminal case vide order dated 22.11.2006. On the other hand in FIR No.169/04 no enquiry was initiated at that time against the applicant. However, respondents vide their order dated 07.08.2010 decided to hold departmental enquiry on allegations contained in criminal case qua FIR No.169/04. The applicant challenged the said order before this Tribunal through OA-2927/2010. The Tribunal vide judgment dated 07.09.2010 quashed the aforesaid orders but gave liberty to the Disciplinary Authority (DA) to order fresh departmental enquiry after recording reasons that led to change in their earlier decision to keep the departmental enquiry in abeyance till the conclusion of the criminal case. In pursuance of the directions of the Tribunal the respondents passed an order dated 20.04.2011 by which departmental enquiry against the applicant was initiated. The applicant again approached this Tribunal by filing OA-1671/2011. This was, however, withdrawn by him on 06.05.2011 with liberty to prefer representation to the DA. Accordingly, the applicant made a representation to the DA on 09.05.2011. This was rejected on 03.06.2011 by the DA and the departmental enquiry was permitted to continue. EO gave his findings on 15.12.2011. The applicant preferred a representation against this to the DA. After taking into consideration the points raised by the applicant the DA passed an order dated 11.05.2012 imposing penalty of dismissal from service on the applicant. The applicant appealed against this order on 28.05.2012. This was rejected by the Appellate Authority (AA) on 11.09.2012. Aggrieved by these orders of the respondents, the applicant has preferred this O.A. before us.
3. The applicants counsel argued that the orders of the respondents were not only in violation of Article-14 of the Constitution of India but were also in variance with their own Addendum in SO No.125 dated 28.09.2010. He stated that in identical circumstances the respondents vide their order dated 15.11.2010 have kept departmental enquiry against the applicant in abeyance till the finalization of criminal case by relying on the same Addendum. Learned counsel further argued that the DA has not dealt with all the points raised by the applicant in his representation dated 09.05.2011 causing great prejudice to the applicant. He stated that the decision of the respondents to initiate departmental enquiry proceedings against the applicant after more than 6 = years of alleged misconduct is unjustified, arbitrary and illegal. He submitted that this is in violation of Apex Courts judgment in the case of State of M.P. Vs. Bani Singh & Anr., 1990 (Supp) SCC 738. Learned counsel further argued that the respondents have relied on the SFL report very heavily to prove the charge against the applicant. However, the maker of the SFL report was not examined in the enquiry proceedings to prove the contents of the said report. Consequently, the applicant was not afforded with an opportunity to cross examine the said witnesses, thereby causing great prejudice to his defence.
4. Learned counsel stated that the respondents have also heavily relied on the disclosure statement of the applicant made in police custody. According to him the applicant had been made to sign this statement forcibly. He submitted that as per Section-26 of the Indian Evidence Act, 1872 confession by the accused in police custody cannot be proved or relied upon against him.
5. Lastly, the applicants counsel stated that the charges against the applicant were vague as the time, date and place of the alleged misconduct have not been mentioned. Moreover, while the applicant has been charged that he has not followed instructions for verification of passport, yet the said instructions were never provided to him at any time during the enquiry.
6. The respondents in their reply have not disputed the facts of the case quoted above. They have further submitted that secret information was received by Inspector Rakesh Sagwan of Special Cell that racket was going on in procuring passports on the basis of false information and submission of wrong facts. Information was also received that many passports had been procured at the address A-465, Shashtri Nagar, New Delhi. Some Afgan Nationals had reportedly also procured Indian Passports with the assistance of these racketeers. On investigation, it was found that 34 applications for issue of passports on the said address has been received during the period from 1994-2004. On thorough examination and careful scrutiny of police verification files, it was revealed that in most of the verification files the name of reference/witness was cited as one Pramod Sharma s/o Sh. Gordhan r/o A-465, Shastri Nagar, New Delhi. It was also noticed that documents which were used for getting police verification report were false and fabricated. Some photos affixed on the application forms were different from that of the applicant and also names and other details had been added/deleted in the documents. Further, it was noticed that few applicants had managed to procure second passport on the basis of lost reports and suppression of other material information. On this basis, it became clear that Pramod Sharma had hatched a conspiracy with officers of Special Branch for procuring passports on the basis of false and fabricated information and documents. Accordingly, a case was registered vide FIR No. 169 dated 12.12.2004 u/s 419/420/468/471/120-B r/w 12 of PP Act. During the course of investigation the applicant (ASI Krishan Pal) was arrested on 15.12.2004. During investigation he disclosed that he conducted the police verification at the instance of accused Pramod Sharma in an illegal manner without meeting the applicants and witnesses. He disclosed that he had conspired with the accused Pramod Sharma.
7. The respondents have stated that departmental enquiry proceedings had also been initiated against the applicant in respect of charges relating to FIR No. 508/2004 vide order issued on 26.11.2006 and were held in abeyance. However, inadvertently, in that order FIR No.169 also got mentioned though that order related only to FIR No. 508/2004. The respondents have admitted that initially departmental enquiry proceedings initiated against the applicant were kept in abeyance as per prevalent instructions at that time. However, vide Standing Order No. A-20 dated 25.10.2000 permission to initiate parallel departmental enquiry proceedings in cases where criminal cases were also pending was given in pursuance of Honble Supreme Court judgment in the case of Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd., AIR 1999 SC 1416. Subsequently, circular was also issued on 22.06.2011, which reads as follows:-
No.7642-99/P.Cell(Misc.)/ dated 22/6/2011 Vigilance,New Delhi
Instances have come to notice that disciplinary/appellate authorities while deciding the departmental enquiries/appeals of the delinquents/appellants involved in criminal cases especially the cases/offences relating to moral turpitude do not adopt the parameters laid down in Standing Order No.A-20 (Previous SO No. 125) and the same are violated. In once such instance appellant, who was dismissed by the disciplinary authority considering the gravity of the charge after departmental enquiry, the appellate authority accepted the appeal and reinstated the appellant in service stating as the criminal case is still pending in the court against him, the severest punishment before the judicial verdict would not be fair.
This aspect has already been examined by the department and detailed instructions have been issued vide Standing Order A-20 (Previous SO No. 125). As per Point 10 sub-point (v) of the Standing Order if the criminal case does not proceed or its disposal is being unduly delayed, the DE proceedings, even if they were stayed on account of 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. The same had been decided by the Honble Supreme Court of India in case of Capt. M. Paul Anthony Vs Bharat Gold Mines Ltd., (AIR 1999 SC 1416).
Keeping in view the above instructions, it is clear that notwithstanding the pendency of the cases in the court of law, especially the cases where corruption and moral turpitude are involved, departmental enquiries can be decided and punishment imposed after following the due process without waiting for the completion of the trial of the case.
sd/-
Alok Kumar Verma Special Commissioner of Police Vigilance, Delhi. The respondents have stated that in view of these instructions, the departmental enquiry proceedings against the applicant were taken up. They have contended that due procedure has been followed in conducting this enquiry. The EO found the charge against the applicant to have been proved. The DA after considering the representation of the applicant imposed punishment of dismissal from service on the applicant. Appeal was also rejected by the AA.
8. We have heard both parties and perused the material placed on record.
9. The first ground taken by the applicant is that the respondents had initially decided to keep the departmental enquiry proceedings against him in abeyance but subsequently changed their mind and went on with the proceedings and also punished him in the same. In a similar case, the respondents have still kept the proceedings in abeyance. This according to the applicant has been in violation of the respondents own instructions as laid down in Addendum of SO-125 which stipulates that where criminal proceedings are pending, the DA should not issue final orders but await the outcome of the investigation.
10. As mentioned above, the respondents have disputed this and have clarified that vide their Circular dated 22.06.2011 which has been quoted above, it is provided that notwithstanding pendency of criminal case,especially the cases where corruption and moral turpitude are involved, departmental enquiries can be decided and punishment imposed after following the due process without waiting for the completion of the trial of the case.
11. We have perused the Circular and we agree with the respondents that after issue of these instructions there was no compulsion to keep the departmental enquiry proceedings in abeyance or to not pass order on the same till the outcome of the criminal case was known. Thus, this ground taken by the applicant is not tenable.
12. The next ground taken by the applicant is that the proceedings have been initiated against him after more than 6 = years of alleged misconduct. His contention is that this is in violation of Apex Courts judgment in the case of State of Madhya Pradesh vs. Bani Singh and Ors., 1990 (Supp) SCC 738. In this regard, the applicant has also relied on the judgment of this Tribunal in OA-3697/2010 ( SI Raghubir Singh Vs. GNCTD & Ors.) decided on 19.09.2011 in which placing reliance on various judgments such as State of M.P. Vs. Bani Singh & Anr., 1990 Supp. SCC 738, State of A.P. Vs. N. Radhakishnan, (1998) 4 SCC 154, P.V. Mahadevan Vs. MD. T.N. Housing Board, 2005 SCC (L&S) 861 and M.V. Bijlani Vs. UOI, (2006) 5 SCC 88, it was held that departmental enquiries cannot be permitted when there is no satisfactory explanation for the inordinate delay in issuing the charge memo.
13. The respondents, on the other hand, relied on the judgments in the case of UOI & Anr. Vs. B.C. Chaturvedi, (1995) 6 SCC 750, Government of Andhra Pradesh and Ors. Vs. V. Appala Swamy, (2007) 14 SCC 49, Punjab Water Supply Sewerage Board and Anr. Vs. Ram Sajivan and Anr., (2007) 9 SCC 86. In the case of V. Appala Swamy (supra) in Para-12 it has been laid down as follows:-
12. So far as the question of delay in concluding the departmental proceedings as against a delinquent officer is concerned, in our opinion, no hard and fast rule can be laid down therefor. Each case must be determined on its own facts. The principles upon which a proceeding can be directed to be quashed on the ground of delay are:
(1) Where by reason of the delay, the employer condoned the lapses on the part of the employee. (2) Where the delay caused prejudice to the employee.
Such a case of prejudice, however, is to be made out by the employee before the Inquiry Officer. In the case of B.C. Chaturvedi (supra), it has been held that delay by itself cannot be held to be fatal in the departmental enquiry proceedings involving serious charges of corruption.
In the case of Punjab Water Supply Sewerage Board and Anr.(supra), Honble Supreme Court has held as follows:-
22. A question as to whether a long delay by itself would be a sufficient ground for not directing initiation of a departmental proceeding came up for consideration before this Court in P.D. Agrawal v. State Bank of India & Ors. [2006 (5) SCALE 54], wherein the doctrine of prejudice was considered stating that if there exists a satisfactory explanation for delay, same may not be a bar in directing initiation of a fresh proceedings. We, however, are not oblivious that in a different situation, this Court in M.V. Bijlani v. Union of India [(2006) 5 SCC 88] took the factor in regard to delay in initiating a departmental proceedings as one of the relevant factors amongst others to determine the question as to whether a misconduct has been proved or not.
23. The instant case is not one where we can ignore the gravity of the offence. It is also not a case where the respondents have pleaded prejudice or brought sufficient materials on records so as to enable this Court to arrive at a finding that no evidence would be available. If departmental proceeding is directed to be initiated then Respondent would not be in a position to adduce any evidence in support of defence, because of passage of time.
24. We, therefore are of the opinion that the interest of justice would be met if liberty is granted to the appellant herein to initiate a disciplinary proceedings against the respondent whereafter the appellants may pass appropriate order in accordance with law. The impugned judgment is set aside.
14. The position that emerges from the above judgments is that delay by itself may not be sufficient to quash the proceedings. Facts and circumstances of each case, nature of charges, the nature of evidence and the manner in which delay could cause prejudice to the defence of the delinquent officer etc. will have to be taken into consideration.
15. In the instant case, the nature of charge against the applicant is of grave nature, namely, that he connived with one Sh. Pramod Sharma to facilitate issue of passports on the basis of forged and fabricated documents. The AA in his order has observed that the conduct of the applicant could have enabled even some anti national elements to obtain passports and leave the country after committing heinous crime. Further, we find that the charge against the applicant has been proved on the basis of documentary evidence. This evidence is very much intact and has not eroded by passage of time. Therefore, it cannot be said that delay in the commencement of these proceedings has caused any prejudice to the defence of the applicant. Further, the respondents have explained that the departmental enquiry proceedings were earlier kept in abeyance on account of the prevalent instructions at that time. Subsequently, when revised instructions were issued following the Apex Courts judgment in the case of Capt. M. Paul Anthony (supra) the departmental enquiry could commence. Thus, delay itself is not unexplained. Under these circumstances, we are not inclined to quash these proceedings on the grounds of delay alone.
16. The next ground taken by the applicant is that while the respondents have heavily relied on the SFL report, the maker of that report was not examined in the departmental enquiry proceedings thereby denying the applicant the right to cross examine him and causing great prejudice to his defence. We have perused the material placed on record and find that it is true that the expert who had prepared the SFL report was not examined in the departmental enquiry proceedings. However, we find that SFL report has been relied upon only to prove that the signatures which were stamped marked in the passport verification forms matched with the specimen signature of the applicant. We find that in his defence statement the applicant has no where denied that he had not signed the verification forms. This is understandable since these forms pertained to the area and period during which applicant was posted as an Area Officer of Police Station, Sarai Rohilla and was incharge of conducting the police verification of that area. Initiallly in his defence the applicant had also taken the plea that the original passport verification forms had not been shown to him. However, subsequently the EO had once again summoned PW-5 (woman Inspector Tripti Joshi) and PW-6 (Sh. Narender Vats Ahalmad in the court of Learned CMM) who had placed before the applicant the original PP forms pertaining to the following cases:-
(1) Avtar Chand s/o Balwant Chand r/o A-465, Shastri Nagar, Delhi File No. C-023752 dated 3.12.2003.
(2) Geeta Sharma w/o Parmod Sharma r/o A-465, Shastri Nagar, Delhi File No. C-020118 dated 01.10.2003.
(3) Anil Kumar Gupta s/o Jawahar Lal Gupta r/o H.No.313/73-D, Anand Nagar, Inderlok, Sarai Rohilla, Delhi File No.B-025163 dated 10.12.2003.
(4) Hitesh Mudgil s/o Mahesh Chander Mudgil r/o A-465, Shastri Nagar, Delhi File No.C-007636 dated 8.4.2004.
(5) Jagtar Kaur w/o Jaskirat Singh r/o 313/64, Anand Nagar, Inderlok, Sarai Rohilla, Delhi.
(6) Savinder Kaur d/o Kulbir Singh r/o A-363, Shastri Nagar, Delhi File No.A-000683 dated 9.01.2004.
(7) Baljeet Kaur w/o Surbir Singh r/o A-363, Shastri Nagar, Delhi file No. A-000454 dated 06.01.2004.
(8) Sarita Gupta w/o Anil Kumar Gupta r/o 313/73-D, Anand Nagar, Inderlok, Delhi File No.B-025162 dated 10.12.2003.
(9) Malkit Kahlon s/o Ranjit Kahlon r/o 52-A, Anand Nagar, Inderlok, Delhi File No.C-010671 dated 19.05.2004. Thus, we find that while it may be true that the SFL expert had not been examined in the departmental enquiry proceedings, yet, in our opinion, this has not caused any prejudice to the defence of the applicant since he has not disputed the SFL report, the expert would have been called to testify. Hence even this ground of the applicant cannot be accepted.
17. The applicant has said that his disclosure statement in the police custody has also been relied upon by the respondents that as per Section 20 of the Indian Evidence Act confession made by the accused in police custody cannot be relied against him. The respondents have in their reply stated that technical rules of the Evidence Act are not applicable in departmental enquiries as the standard of proof is different in these enquiries as compared to judicial proceedings. They have contended that in departmental enquiry proceedings proof based on preponderance of probability is sufficient for holding the charge to have been proved. We agree with the respondents on this issue. Also we find that other than disclosure statement of the applicant, there is sufficient documentary and oral evidence against him.
18. The applicant has also stated that the charge against him was vague and that during the departmental enquiry proceedings he had not been given the instructions regarding verification of passports which he has allegedly violated. We are not inclined to agree with the applicant in this regard. The charge against him was specific in nature, namely, that he connived with one Pramod Sharma to facilitate issue of passports on forged and fabricated documents. A number of cases were shown to the applicant during the enquiry to establish this connivance. Hence, it cannot be said that the charge was vague. Moreover, no instructions are required to police officers for telling them not to recommend issue of passports without genuine verification of the names and particulars of those who have applied. The applicants contention that instructions regarding verification of passports which he has allegedly violated were not shown to him does not merit any consideration.
19. On the basis of above, we come to the conclusion that none of the grounds taken by the applicant for seeking quashing of these proceedings is maintainable. We do not find any infirmity in the orders passed by the respondents. Accordingly, this O.A. is dismissed. There shall be no order as to costs.
(Shekhar Agarwa) (G. George Paracken)
Member (A) Member (J)
/Vinita/