Central Administrative Tribunal - Delhi
Shri Tula Ram vs Govt. Of Nct Of Delhi on 4 December, 2012
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.916/2012 Reserved on : 14.05.2012 Pronounced on 04.12.2012. Honble Mr. George Paracken, Member (J) Honble Mr. Sudhir Kumar, Member (A) Shri Tula Ram, S/o Late Shri Prahlad Singh Aged about 47 yrs, Central Zone, PCR, Belt No.2184/PCR, New Delhi. Applicant. (By Advocate: Shri T.D.Yadav) Versus 1. Govt. of NCT of Delhi Through Commissioner of Police, Police HQ; I.P.Estate, MSO Building, New Delhi. 2. Joint Commissioner of Police, Headquarter, Police HQ; I.P.Estate, MSO Building, New Delhi. 3. Addl. Dy.Commissioner of Police (GA) Police Control Room, Delhi. Respondents. (By Advocate: Shri Vijay Pandita) O R D E R
Shri Sudhir Kumar, Member (A) The applicant, who is a Driver in Delhi Police, is before us aggrieved by the order dated 21.11.2011 (Annexure A) passed by the Additional Deputy Commissioner of Police, Police Control Room, Delhi, ordering for regular departmental enquiry to be conducted against him on account of gross misconduct, negligence, carelessness and rash negligence driving, stating as follows:
It is alleged against Const. (Dvr.) Tula Ram No.2184/PCR (PIN No. 26891/ ) that he was performing duty on Police Ambulance No. DD-IA No. 1309, one Shri Mohd. Sakil S/o Shri Mohd. Vahid R/o E-14, J.J. Colony, Hasthsal Road, Uttam Nagar, New Delhi made a complaint that he alongwith his wife going to Buland Shahar (UP) on his Motor Cycle NO. DL-4S-BC-1683 and his Father-in-law Matloob alongwith his mother-in-law Smt. Samsiran was also going for the same place on his separate Motor Cycle No.DL-4S-AW-9083. At about 8.30 PM, when they reached at Station Road, a Police Ambulance bearing No.DL-1A-1309, which was driven by Const. (Dvr.) Tula Ram, hit his Father-in-laws Motor Cycle No.DL-4S-AW-9083 from right side, resulting which his Father-in-law fell down and received injuries. The public caught Police Ambulance with Const. (Dvr.) Tula Ram at the spot. After that both the injured were taken to Safdarjung Hospital in the same Ambulance, where the Doctor had declared brought dead to his Mother-in-law Smt. Samsiran on MLC No.22708/09 and admitted his Father-in-law Matloob on MLC No.22707/09. They have also alleged that the Driver of Police Ambulance hit the bike while he was driven his ambulance rash and negligence. Earlier, a DE contemplation order has been issued in this regard vide this office order No.31131-201//HAP/P-II/PCR dated 16.11.2010.
The above act on the part of Const. (Dvr.) Tula Ram, No.2184/PCR amounts to gross misconduct, negligence, carelessness and unbecoming of a Police Officer which renders him liable to be dealt with departmentally, under the provisions of Delhi Police (Punishment & Appeal) Rules, 1980.
Therefore, I, Dheeraj Kumar, Addl. DCP/GA/PCR, Delhi hereby order to conduct a regular departmental enquiry against Const. (Dvr.) Tula Ram, No.2184/PCR, Delhi (Enquiry Officer) for conducting its proceedings on day to day basis and to submit his findings expeditiously. The E.O. will also submit a weekly progress report to the undersigned on every Friday.
D-221111-177-0007 ( Dheeraj Kumar ) Addl. Dy. Commissioner of Police (GA), Police Control Room:Delhi.SIP/OB No.29623-58/HAP/P-II/PCR, dated Delhi, the 21/11/11.
2. The applicant has submitted that his work and conduct was fully satisfactory, till a frivolous and false complaint was filed against him, which resulted in an FIR No.33/09 under Section 279/304 of the IPC being submitted before the concerned jurisdictional Magistrate under Section 154 of the Cr.P.C. (Annexure-B of the OA) in regard to the institution of the complaint regarding the accident, the details of which have been similarly described in the Memorandum of Enquiry. The applicant has submitted that the Court of learned Metropolitan Magistrate, Dwarka, took cognizance of the FIR, and a criminal case has since been registered against him, and is going on. The applicant has submitted that on the very same date, he and his other colleagues ASI Tara Chand, HC Ashok Kumar and HC Lal Dev submitted a common representation dated 16.02.2009 through Annexure-C to the Deputy Commissioner of Police, Control Room, against the false and frivolous case having been registered against them. The applicant has submitted that thereafter he and his three other colleagues, who were deputed and travelling in the same Ambulance were, produced before the Police Control Room on 18.02.2009, and submitted that the accident had occurred due to an unknown vehicle (Annexure D). However, the Respondent No.3 went ahead with ordering for the conduct of a regular inquiry, which was entrusted to Inspector Ranjit Kumar for conducting its proceedings on day to day basis, and was directed to submit his findings early and also submit a weekly progress report.
3. The applicant has submitted that since the allegations as per the summary of allegations/charge-sheet in respect of departmental inquiry instituted against him are the same, which are covered under the criminal case registered in connection with the incident on 13.02.2009, he made a representation on 23.01.2012 requesting to stay the departmental proceedings against him, but till date no action has been taken by the respondents, which is in violation of the law laid down in Capt. M.Paul Anthony vs. Bharat Gold Mines Ltd. & Another JT 1999 (2) 453 and the respondents have decided to proceed ahead with the departmental inquiry. It was submitted that since in the present case the departmental proceedings and the criminal case are based on the same set of facts, and the evidence in both the proceedings is common, without being any variance, in view of the observations of the Apex Court, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case. If the departmental proceedings are not stayed during the pendency of the criminal case, the applicant would suffer an irreparable loss and injury, which cannot be compensated. In the result, he has prayed for the following reliefs:
(i) To set aside & quash the impugned order dated 21.11.2011.
(ii) To set aside & quash the impugned summary of allegation dated 04.01.2012. (OR) Departmental proceedings may be kept abeyance till conclusion of criminal case.
(iii) To pass any other order/s as may be deemed just fit and proper in the facts and circumstances of the case.
(iv) Award costs.
4. He has also prayed for the following interim reliefs:
9. Interim relief:
In view of the above fact and circumstances of the case this Honble Tribunal may be pleased to say departmental proceedings during the pendency of this OA.
5. When the case was listed before the Court on 19.03.2012, it was directed that the applicants request for interim direction would be considered on the next date. Thereafter, the interim relief was never granted till the case was finally heard and reserved for orders on 14.05.2012. Therefore, we have to now consider only the main reliefs, as prayed for in the OA.
6. The respondents filed their reply on 04.04.2012. Apart from citing the case of State of Rajasthan vs. B.K.Meena, (1996) 6 SCC 417, they have also cited the case of Depot Manager, A.P.S.R.T.C vs. Yousuf Miya, (1997) 2 SCC 699 in which at page 703 the Honble Supreme Court has held as follows:
There is yet another reason. The approach and the objective in the criminal proceedings and the disciplinary proceedings is altogether distinct and different. In the disciplinary proceedings, the question is whether the respondent 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 him under the Prevention of Corruption Act (and the Indian Penal Code, if any) are established and, if established, what sentence should be imposed upon him. The standard of proof, the mode of enquiry and the rules governing the enquiry and trial in both the cases are entirely distinct and different. Staying of disciplinary proceedings pending criminal proceedings, to repeat, should not be a matter of course not a considered decision. Even if stayed at one stage, the decision may require reconsideration if the criminal case gets unduly delayed."
We are in respectful agreement with the above view. The purpose of departmental enquiry and of prosecution are two different and distinct aspects. The criminal prosecution is launched for an offence for violation of a duty the offender owes to the society or for breach of which law has provided that the offender shall make satisfaction to the public. So crime is an act of commission in violation of law or of commission of public duty. The departmental enquiry is to maintain discipline in the service and efficiency of public service. It would, therefore, be expedient that the disciplinary proceedings are conducted and completed as expeditiously as possible. It is not, therefore, desirable to lay down any guidelines as inflexible rules in which the departmental proceedings may or may no 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. Offence generally implies infringement of public, as distinguished from mere private rights punishable under criminal law. When trial for criminal offence is conducted it should be in accordance with proof of the offence as per the evidence defined under the provisions of the Evidence Act. Converse is the case of departmental enquiry. The enquiry in a departmental proceedings relates to conduct or breach of duty of the delinquent officer to punish him for his misconduct defined under the relevant statutory rules or law. That the strict standard of proof or applicability of the Evidence Act stands excluded is a settled legal position. The enquiry in the departmental proceedings relates to the conduct of the delinquent officer and proof in that behalf is not as high as in an offence in criminal charge. It is seen that invariably the departmental enquiry has to be conducted expeditiously so as to effectuate efficiency in public administration and the criminal trial will take its own course. The nature of evidence in criminal trial is entirely different from the departmental proceedings. In the former, prosecution is to prove its case beyond reasonable doubt on the touchstone of human conduct. The standard of proof in the departmental proceedings is not the same as of the criminal trial. The evidence also is different from the standard point of Evidence Act. The evidence required in the departmental enquiry is not regulated by Evidence Act. Under these circumstances, what is required to be seen is whether the departmental enquiry would seriously prejudice the delinquent in his defence at the trial in a criminal case. It is always a question of fact to be considered in each case depending on its own facts and circumstances. In this case, we have seen that the charge is failure to anticipate the accident and prevention thereof. It has nothing to do with the culpability of the offence under Sections 304 A and 338 I. P. C. Under these circumstances, the High Court was not right in staying the proceedings.
7. The appeals are accordingly allowed. No costs.
7. The respondents have also relied upon the case of Capt. M.Paul Anthony vs. Bharat Gold Mines Ltd., (1999) 3 SCC 679 in which at page 691the Honble Apex Court has held as follows:
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 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. (Emphasis supplied)
7. The Respondents have further relied upon the case of NOIDA Enterpreneurs Assn. vs. NOIDA, (2007) 10 SCC 385 in which the Honble Apex Court held as follows:
16. The standard of proof required in departmental proceedings is not the same as required to prove a criminal charge and even if there is an acquittal in the criminal proceedings the same does not bar departmental proceedings. That being so, the order of the State Government deciding not to continue the departmental proceedings is clearly untenable and is quashed. The departmental proceedings shall continue.
17. Mr. K.T.S. Tulsi, learned counsel for Smt. Neera Yadav stated that an appropriate motion shall be made before the departmental authorities to keep the proceedings in abeyance till conclusions of the criminal proceedings. If such prayer is made, the same shall be considered in the light of the principles set out by this Court in Hindustan Petroleum Ltd.'s case (supra) and Uttaranchal Road Transport Corpn.'s case (supra). It is ordered accordingly. (Emphasis Supplied)
9. The respondents have further submitted that in terms of the Standing Order No.A-20 (previous SO No.125/10) issued by the Competent Authority regarding conduct of departmental proceedings in Delhi Police, it has been clearly provided that the departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously. It is seen that this Standing Order No.A-20 has taken note of the directions of the Honble Apex Court in the case of Capt. M.Paul Anthony (supra) and also the Apex Courts finding in Kendriya Vidyalaya Sangathan and Ors. vs. T.Trinavas AIR 2004 SC 4127, in which the Honble Apex Court has clearly laid down the law that there will be no stay of parallel departmental enquiry, and it has been prescribed in the Standing Order that in such cases where police officers are facing criminal proceedings, departmental enquiry proceedings should also be initiated simultaneously, and should not be kept/held in abeyance due to the pendency of such criminal proceedings, even if the evidence in both the proceedings may overlap, or may be the same. The respondents had, therefore, prayed that the OA may be dismissed.
10. Heard the case in detail. Learned counsel for the applicant relied heavily upon the judgment in the case of Capt. M.Paul Anthony (supra) and also relied upon the case of Divisional Controller K.S.R.T.C.vs.M.G.Vithal Rao, 2012 (1) AISLJ 155, in which the Honble Apex Court has summarized the whole case-law on this subject, and has held as follows:
12. The issue as to whether disciplinary proceedings can be held at the time when the delinquent employee is facing the criminal trial, has also been considered from time to time. In State of Rajasthan v. B.K. Meena & Ors., AIR 1997 SC 13, this Court while dealing with the issue 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 only ground suggested in the above decisions as constituting 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............One of the contending considerations 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 are involved. They get bogged down on one or the other ground. They hardly ever reach a prompt conclusion..........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 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 undesirable elements are thrown out and any charge of misdemeanour 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 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 misdemeanour 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........"
(Emphasis added)
13. In Capt. M. Paul Anthony v. Bharat Gold Mines Ltd., AIR 1999 SC 1416, this Court held that there can be no bar for continuing both the proceedings simultaneously. The Court placed reliance upon a large number of its earlier judgments, including Delhi Cloth and General Mills Ltd. v. Kushal Bhan, AIR 1960 SC 806; Tata Oil Mills Co. Ltd. v. The Workmen, AIR 1965 SC 155; Jang Bahadur Singh v. Baij Nath Tiwari, AIR 1969 SC 30; Kusheshwar Dubey v. M/s. Bharat Coking Coal Ltd. & Ors., AIR 1988 SC 2118; Nelson Motis (Supra); and B.K. Meena (Supra), and held that proceedings in a criminal case and departmental proceedings can go on simultaneously except where both the proceedings are based on the same set of facts and the evidence in both the proceedings is common. In departmental proceedings, factors prevailing in the mind of the disciplinary authority may be many, such as enforcement of discipline or to investigate level of integrity of delinquent or other staff. The standard of proof required in those proceedings is also different from that required in a criminal case. While in departmental proceedings, the standard of proof is one of preponderance of probabilities, in a criminal case, the charge has to be proved by the prosecution beyond reasonable doubt. Where the charge against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it is desirable to stay the departmental proceedings till conclusion of the criminal case. In case the criminal case does not proceed expeditiously, the departmental proceedings cannot be kept in abeyance for ever and may be resumed and proceeded with so as to conclude the same at an early date. The purpose is that if the employee is found not guilty his cause may be vindicated, and in case he is found guilty, administration may get rid of him at the earliest.
However, while deciding the case, taking into consideration the facts involved therein, the Court held:
"Since the facts and the evidence in both the proceedings, namely, the departmental proceedings and the criminal case were the same without there being any iota of difference, the distinction, which is usually drawn as between the departmental proceedings and the criminal case on the basis of approach and burden of proof, would not be applicable to the instant case."
14. In State Bank of India & Ors. v. R.B. Sharma, AIR 2004 SC 4144, same view has been reiterated observing that both proceedings can be held simultaneously, except where departmental proceedings in criminal case are based on same set of facts and evidence in both the proceedings is common. The Court observed as under:-
"The purpose of departmental inquiry and of prosecution are to put a distinct aspect. Criminal prosecution is launched for an offence for violation of duty. The offender owes to the society, or for breach of which law has provided that the offender shall make satisfaction to the public. So crime is an act of commission in violation of law or of omission of a public duty. The departmental inquiry is to maintain discipline in the service and efficiency of public service."
15. While deciding the said case a very heavy reliance has been placed upon the earlier judgment of this Court in Depot Manager, Andhra Pradesh State Road Transport Corporation v. Mohd Yousuf Miya & Ors., AIR 1997 SC 2232, wherein it has been held that both proceedings can be held simultaneously unless the gravity of the charges demand staying the disciplinary proceedings till the trial is concluded as complicated questions of fact and law are involved in that case.
16. A similar view has been reiterated by this Court in Senior Superintendent of Post Offices v. A. Gopalan, AIR 1999 SC 1514; Kendriya Vidyalaya Sangathan & Ors. v. T. Srinivas, AIR 2004 SC 4127; Krishnakali Tea Estate v. Akhil Bhartiya Chah Mazdoor Sangh & Anr., (2004) 8 SCC 200; Commissioner of Police Delhi v. Narendra Singh, AIR 2006 SC 1800; South Bengal State Transport Corporation v. Span Kumar Mitra & Ors., (2006) 2 SCC 584; and Punjab Water Supply & Sewerage Board v. Ram Sajivan, (2007) 9 SCC 86. (Emphasis supplied)
11. We have given or anxious consideration to the facts of the case, and the case law on the point as cited. In the instant case, while the incidence of accident in respect of which the criminal case has been registered, and in respect of which the departmental enquiry has been instituted, was one incident only, which had happened on 13.02.2009, however, if the applicant is so rash and negligent a driver as to have caused the death of a person, the desirability, propriety and advisability of his being allowed to continue to function in the same capacity of a driver, without being subjected to a disciplinary enquiry, just because a criminal case is also pending against him on a charge arising out of the same accident, which may be delayed unduly, cannot be a ground to bar the respondents from continuing with the disciplinary proceeding. As was observed by the Apex Court in State of Rajasthan vs. B.K.Meena (supra), the disciplinary proceedings are meant not really to punish the guilty, but to keep the administrative machinery unsullied, by getting rid of bad elements. Therefore, while punishment in the form of a sentence in the criminal case may take a long time in coming, the administration cannot be prevented from trying to keep the administrative machinery unsullied by getting rid of bad elements. In the case of M. Paul Anthony (supra)also the Honble Apex Court has laid down the principles in para-22 of the judgment, as reproduced above in para-7 above, for deciding as to whether departmental proceeding case can continue along with the criminal case and para 22 (i) & 22 (v) of the Honble Apex Court judgment would also specifically apply to the instant case.
12. In fact, as has been stated by the Honble Apex Court in the latest case of Divisional Controller, K.S.R.T.C. vs. M.G. Vithal Rao (supra) in para 13 of its order, in the ratio of Capt. M. Paul Anthonys case (supra) also it has been held that there can be no bar for continuing both the criminal and the Departmental proceedings simultaneously, and in doing so the Honble Apex Court placed reliance upon a large number of its earlier judgments, including Delhi Cloth and General Mills Ltd vs.Kushal Bhan (supra), Tata Oil Mills Co. Ltd. vs. The Workman, AIR 1965 SC 155, Jang Bahadur Singh vs. Baij Nath Tiwary, AIR 1969 SC 30, Kusheshwar Dubey vs. M/s Bharat Coking Coal Ltd. & Ors, Nelson Motis vs. Union of India, 1992 3 SLJ 65 SC, AIR 1992 SC 1991.
13. Also, we find that the Respondents Standing Order No.A-20 (previous S.O. No.125/10) is a well-reasoned piece of subordinate legislation, based upon two very oft-cited and important judgments of the Honble Apex Court, and that that Standing Order is the source order for the action taken by the respondents in continuing ahead with the disciplinary enquiry simultaneously with the criminal case. The applicant before us has not laid a challenge to the source Standing Order No.A-20, and he has only challenged the consequential actions of the Respondents, which he cannot be allowed to do so, as per the law laid down by the Honble Apex Court in Edukanti Kistamma (Dead) v. S. Venkatareddy: (2010) 1 SCC 756.
14. Therefore, drawing sustenance from the very same judgment cited by the learned counsel for the applicant himself, we find that this is not a fit case for this Tribunal to interfere with the continuation of the conduct of the departmental enquiry against the applicant, as it would only amount to trying to keep the administrative machinery unsullied, by getting rid of bad elements. Therefore, the OA fails and the same is dismissed. No order as to costs.
(Sudhir Kumar) (George Paracken) Member (A) Member (J) /kdr/