Central Administrative Tribunal - Delhi
Ved Parkash Sharma vs Govt. Of Nctd on 7 January, 2025
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Item No. 38 (C-4) OA 3668/2017
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A No. 3668/2017
Reserved on :20.11.2024
Pronounced on : 07.01.2025
Hon'ble Ms. Harvinder Kaur Oberoi, Member (J)
Hon'ble Dr. Sumeet Jerath, Member (A)
VED PARKASH SHARMA
S/o. Late Shri Ram Parkash Sharma
R/o. B-7/88, Sector-17, Rohini, Delhi.
Aged 64 years
Vice-Principal (Retd.) Group B' ....Applicant
(By Advocate :Mr. Sachin Jain with Ms. Harsh Lata)
Versus
1. Govt. of N.C.T.
Through
Its Chief Secretary
4th Level, C-Wing, Delhi.
2. Ministry of Home Affairs
ThroughIts Secretary
North Block, New Delhi.
3. Union Public Service Commission
Through Its Secretary
Dholpur House, Shahjahan Road,
New Delhi. ...Respondents
(By Advocate : Mr. Anuj Kumar Sharma)
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Item No. 38 (C-4) OA 3668/2017
ORDER
Per Hon'ble Mrs. Harvinder Oberoi, Member (J) :
This is the third round of litigation. Earlier the applicant filed OA No. 3469/2013 which was disposed of by the Coordinate Bench of this Tribunal. The Bench had passed a detailed order on 10.04.2015 after going through every aspect of the case and upon dealing with the grounds raised by the applicant. For the sake of clarity, the said order is reproduced below :-
"We heard counsels for parties and perused the record. Indubitably, the charge leveled against the applicant In terms of the impugned memorandum is not only grave but wild. There cannot be worsting moral act than the one of the rape of a student by a teacher and a Principal. Given a choice, we could have dismissed the OA In the wake of nature of charges itself. Nevertheless, the charge is only a formal accusation and need to be proved before making a person to suffer the consequences thereof.
7. In Union of India and others Vs. K.V. Jankiraman and others (1991) 4 SCC 109), Hon'ble Supreme Court could take a view that the mere seriousness of allegation cannot be ground to even deny promotion to an employee. Para 16 of the judgment read thus:
"16. On the first question, viz., as to when for the purposes of the sealed cover procedure the disciplinary/criminal proceedings can be said to have commenced, the Full Bench of the Tribunal has held that it Is only when a charge-memo in a disciplinary proceedings or a charge-sheet in a criminal prosecution is issued to the employee that it can be said that the departmental proceedings/criminal prosecution is Initiated against the employee. The sealed cover procedure is to be resorted to only after the charge - memo/charge-sheet is issued. The pendency of preliminary investigation prior to that stage will not be sufficient to enable the authorities to adopt the sealed cover procedure. We are in agreement with the Tribunal on this point. The contention advanced by the learned counsel for the appellant-authorities that when there are serious allegations and it takes time to collect necessary evidence to prepare and issue charge-memo/ charge-3 Item No. 38 (C-4) OA 3668/2017
sheet, It would not be in the interest of the purity of administration to reward the employee with a promotion, Increment etc., does not impress us. The acceptance of this contention would result in Injustice to. the employees in many cases. As has been the experience so far, the preliminary Investigations take an Inordinately long time and particularly when they are initiated at the Instance of the Interested persons, they are kept pending deliberately., Many times they never result in the issue of any charge-memo/charge-sheet. If the allegations are serious and the authorities are keen in investigating them, ordinarily it would not take much time to collect the relevant evidence and finalise the charges. What is further, If the charges are that serious, the authorities have the power to suspend the employee under the relevant rules, and the suspension by Itself permits a resort to the sealed cover procedure. The authorities thus are not without a remedy. It was then contended on behalf of the authorities that conclusions Nos. 1 and 4 of the Full Bench of the Tribunal are Inconsistent with each other. Those conclusions are as follows:
"(1) consideration for promotion, selection grade, crossing the efficiency bar or higher scale of pay cannot be withheld merely on, the ground of pendency of a disciplinary or criminal proceedings against an official;
(2)..........................................................................................
(3)...................................................................
(4) the sealed cover procedure can be resorted only after a charge memo is served on the concerned official or the charge sheet filed before the criminal court and not before;"
8. In the present case, two salient grounds raised by the learned counsel for the applicant to challenge the Impugned memo. of charges are:
(1) The respondent do not have any material/evidence different from one examined by the Trial Court against the applicant, thus he cannot be, proceeded against departmentally.
(II) There is inordinate delay in Issuance of charge sheet.
As far as the first ground is concerned, of course, in N.Ramakrishnan Vs. Deputy Inspector General of Police, Tirunelveli Range, Tirunelvell (W.P (MD) No.3898/2008), Hon'ble Madras High Court could take a view in a case where the criminal case ends of with acquittal of the 4 Item No. 38 (C-4) OA 3668/2017 delinquent, proceedings could be initiated if the department Intended to adduce any evidence which is in its power and possession to prove the charges against the delinquent officer. Para 13 of the judgment wherein a reference has been made to the judgment of Hon'ble Supreme Court reported in 2008 (4) SCC 1) read thus:-
"13. In Hon'ble Supreme Court in a decision reported In 2008 (4) SCC 1 (as cited supra) held as follows:-
"29. There cannot be any doubt whatsoever, as has been submitted by the learned. Additional Solicitor General, that initiation of departmental proceedings is permissible even after the judgment of acquittal is recorded by the criminal court. But the same would not mean that a proceeding would be initiated only because it is lawful to do so. A departmental proceeding could be initiated if the Department intended to adduce any evidence which is in its power and possession to prove the charges against the delinquent officer. Such proceeding must be Initiated bonafide. The action of the authority even in this behalf must be reasonable and fair.
35. It is not a case where a mere benefit of doubt had been given to the respondent in the criminal proceeding. The criminal court has given a positive finding that the prosecution, has not been able to prove that the accused had misappropriated the goods."
9. In the present case, we gave repeated opportunity to respondents to indicate the evidence in its power and possession Intended to be adduced in the departmental proceedings, but despite opportunities no such material/evidence was Indicated by them. However, as has been provided In Rule 14 (15) of CCS (CCA) Rules, 1965, the Inquiring Authority may, in its discretion allow the Presenting Officer to produce evidence not Included in the list given to the Government servant or may itself call for new evidence or recall and re-examine any witness. The Rule read thus:-
"14 (15). If it shall appear necessary before the close of the case on behalf of the Disciplinary Authority, the Inquiring Authority may, In its discretion, allow the Presenting Officer to produce evidence not Included in the list given to the Government servant or may itself call for new evidence or recall and re-examine any witness and in such case the Government servant shall be entitled to have, If he demands it, a copy of the list of further evidence proposed to be produced and an 5 Item No. 38 (C-4) OA 3668/2017 adjournment of the Inquiry for three clear days before the production of such new evidence, exclusive of the day of adjournment and the day to which the inquiry is adjourned. The Inquiring Authority shall give the Government servant an opportunity of inspecting such documents before they are taken on record. The Inquiring Authority may also allow the Government servant to produce new evidence, if it is of the opinion that the production of such evidence is necessary in the interests of justice."
10. In view of the aforementioned provision made in CCS (CCA) Rules, merely because an evidence/material different from one examined by the Trial Court in the criminal case is not mentioned in the list of documents enclosed with the memo of charges as Annexure-III, we cannot presume that the disciplinary authority was not in a position to adduce some evidence/ material in the enquiry proceedings. Though, during the pendency of the OA, the Inquiry Officer could complete the enquiry and prepared its report, which is part of the record produced before us. But, since the report is not under challenge. In the present OA, It would not be proper for us to comment upon its validity and propriety. In the circumstances, particularly the developments, could take place during the pendency of the OA, we are of theview that before passing the final order, the disciplinary authority should give due regard to the aforementioned judgment of Hon'ble Madras High Court.
11. As far as the plea of delay raised by the learned senior counsel for the applicant is concerned, in view of the law declared by Hon'ble Supreme Court In the case of Government of Andhra Pradesh and Others Vs. V. Appala Swamy (2007) 14 SCC 49), such plea can also be examined by the Inquiry Officer/Disciplinary authority. Relevant excerpt of the judgment read thus:-
"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."
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12. As far as the permissibility of Initiation of disciplinary proceedings after acquittal in criminal case is concerned, In N. Ramakrishnan Vs. Deputy Inspector General of Police, Tirunelvell Range, Tirunelvell (Ibld), the Madras High Court itself has ruled that Irrespective of the verdict of criminal Court either acquittal or his conviction, the department can proceed with the departmental enquiry in respect of the charges leveled against the officer. Para 9 to 12 of the judgment read thus:-
"9. A bare perusal of the first charge shows that the facts leading to the initiation of the criminal proceedings as well as the facts leading to the framing of the first charge are. one and the same and in fact, the very first charge refers the very same criminal case In Cr.No.261 of 2004, as the basis of framing the first charge. It is also not the case of the respondent/department that the impugned first charge deals with different set of facts and circumstances. No doubt, the department can proceed parallely and Independently against the delinquent. But, In this case, it is not the parallel but only a subsequent proceedings by the department by issuing the Impugned charge memoafter a period of two years from the date of the criminal Court's decision. Therefore, once the criminal Court had found the delinquent not guilty and acquitted him, what would be the effect of such judgment on the departmental proceedings, is the core issue to be considered by this Court Insofar as the first charge is considered.
10. At this Juncture, the following decisions relied on by the learned Senior Counsel on this aspect are relevant to be quoted. In 2006(2) MLJ 489 (as cited supra), the learned Single Judge of this Court found that the departmental proceedings cannot be continued after the criminal Court's acquittal on merits, especially when the charge is one and the same in both the proceedings. The relevant portions of the said judgment are extracted hereunder: 8.... The crux of the issue is when the facts and evidence in the criminal proceeding and departmental proceeding are same, the department will not be justified In pursuing the departmental proceeding after acquittal in the case..."
9.... It is not in dispute that Irrespective of the verdict of the criminal Court, either acquittal or conviction, undoubtedly, the Department can proceed with the departmental enquiry in respect of the charges leveled against the officer. However, if the criminal Court acquitted the very same person on merits, on the ground that the charges framed against him had not been proved, the Department cannot Ignore the said order of acquittal. It cannot be expected that all cases in 7 Item No. 38 (C-4) OA 3668/2017 criminal proceedings on the very same set of facts will end in acquittal and the departmental action should not be proceeded with. It is settled law that if the acquittal in the criminal proceedings Is not an honourable one, it is always open to the Department to proceed with the departmental proceedings. or enquiry. An honourable acquittal would only mean an acquittal which is free from any doubt...."
10. Applying the proposition laid down in the above referred Division Bench decisions of this Court to the facts of this case, as the charges is one and the same in both the criminal case and in the departmental proceeding and In view of the fact that the criminal Court acquitted the petitioner on merits, it is not desirable on the part of the respondents to proceed with the departmental proceeding."
11. In 2006(1) MLJ 169 (as cited supra), the Hon'ble Division Bench of this Court at paragraph 5 had held as follows:-
"Acquittal of the accused by a Judicial Magistrate, therefore, does not ipso facto absolve him from the liability under the disciplinary jurisdiction of the Revenue administration. The contention that since he was acquitted by a Criminal Court, the department is completely debarred to proceed with the enquiry cannot be accepted. However, as observed in M.Paul Anthony v. Bharat Gold Mines Limited, A.I.R. 1999 S.C. 1416, since the facts and the evidence in both the proceedings viz., departmental proceedings and the criminal case were the same, without there being an 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. In the case on hand, the facts and the evidence in both the proceedings, viz., departmental and criminal were the same and in view of acquittal of the criminal case on merits, we are of the view that the Revenue administration is not justified in pursuing the departmental enquiry."
12. In 2006(1) MLJ 146 (as cited supra), the Hon'ble Division Bench of this Court considered the very same Issue and held as follows at paragraph No.4:-
4...... Inasmuch as the charges both in the departmental enquiry and in the criminal case are one and the same, and the criminal Court acquitted the accused on merits, we are of the view that the 8 Item No. 38 (C-4) OA 3668/2017 disciplinary authority and the Tribunal ought to have focused their attention to the verdict of the criminal Court and considered the same before passing the order. As a matter of fact, the Tamil Nadu Police Standing Orders and the instructions by the Government make it clear that if the charge in the departmental enquiry and the criminal case are Identical, the dismissal of the criminal case acquitting the accused on merits is to be considered by the Department before proceeding further. We are satisfied that Inasmuch as the charge in the departmental enquiry and the grounds leading to the prosecution of the accused is on the same set of facts and in view of the fact that the criminal case ended in honourable acquittal on merits even asearly as on 2.11.1995, the disciplinary authority and the Tribunal ought to have considered the same before proceeding further. We are satisfied that the petitioner has made out a case for Interference."
Also in Union of India and Others Vs. Sunil Kumar Sarkar (2001) 3 SCC 414), relied upon by the counsel for applicant, It could be held thus:
"11. Before concluding we must point out that during the course of arguments, a doubt was raised as to the maintainability of the concurrent proceedings Initiated against the respondent by the authorities. The respondent in this case has been punished for the same misconduct both under the Army Act as also under the Central Rules, 1965. Hence, a question arises whether this would tantamount to 'double jeopardy' and is in violation of Article 20 of the Constitution of India. Having considered the arguments addressed in this behalf, we are of the opinion that so far as the concurrent proceedings initiated by the Organisation against the respondent both under the Army Act and the Central Rules are concerned, they are unexceptionable. These two proceedings operate in two different fields though the crime or the misconduct might arise out of the same act. The Court-Martial proceedings deal with the penal aspect of the misconduct while the proceedings under the Central Rules deal with the disciplinary aspect of the misconduct. The two proceedings do not overlap. As a matter of fact, Notification No. SRO- 329 dated 23-9-1960 Issued under the Central Rules and under sub-sections (1) and (4) of Section 4 of the Army Act makes this position clear. By this notification, the punishments that could be meted out under the Central Rules have been taken 9 Item No. 38 (C-4) OA 3668/2017 out of the purview of the Court- Martial proceedings under the Army Act. We further find support for this view of ours in the judgment of this Court In R. Viswan v. Union of India, AIR 1983 SC 658."
13. In view of the aforementioned, the OA Is disposed of with direction to respondent to keep in view the law declared by the Madurai Bench of Hon'ble Madras High Court In WP (MD) NO.3898/2008 and the plea of delay raised on behalf of applicant while passing the final order in the disciplinary' proceedings Initiated against the applicant. It goes without saying that, in the event of survival of his grievance after the order of disciplinary authority, it would be open to applicant to work out his remedy In accordance with law. No costs."
2. Aggrieved by non supply of the final punishment order by the respondents, the applicant filed C.P No. 534/2016 which was disposed of on 26.10.2016. However, the same was disposed of in the absence of the respondents with a direction to them to supply a copy of the final order passed to enable the applicant to avail his legal remedies within two weeks from the date of receipt of a copy of the order. The applicant again filed another C.P No. 600/2016 along with M.A 3779/2016. Though the CP was dismissed on 06.01.2017 however, notice had been issued on the MA No. 3779/2016 filed for revival of the earlier CP No. 534/2016. Later, on 27.04.2017, the M.A No. 379/2016 in C.P. No. 534/2016 was also dismissed with the following observations:-
"6. As above, the instant M.A. is fixed for hearing. The learned counsel for the respondents submits that this Tribunal while disposing of the O.A No. 3469/2013 only directed them to keep in view the law declared by the Madurai Bench of Hon'ble Madras High Court in W.P (MD) No. 3898/2008 and the plea of delay raised on behalf of the applicant while passing the final order in the disciplinary 10 Item No. 38 (C-4) OA 3668/2017 proceedings initiated against the applicant. Since the respondents are still in the process of passing a final order and that they have not passed any final order till date, there is no contempt by the respondents and accordingly, prays for dismissal of the present M.A.
7. From the above, it is clear that the respondents were directed to keep in view the Madurai Bench decision and the, plea of the delay while passing the final order. Therefore, the question of violation of the directions of the Court does not arise as on today. The contention of the applicant that the respondents have passed the final order cannot be accepted as the learned counsel failed to produce any such order passed by the respondents.
8. In the circumstances, the present M.A., No. 3779/2016 seeking revival of the C.P No. 534/2016, is dismissed, No costs."
3. Unsatisfied, the applicant approached the Hon'ble Delhi High Court vide Writ Petition (C) No. 4978/2017 which was dismissed as withdrawn on 17.08.2017 with liberty to the petitioner to assail the order dated 09.06.2017 on all available grounds in independent proceedings before the Tribunal.
Consequently, by way of the instant OA, the applicant has assailed the penalty order dated 09.06.2017, charge memo dated 07.05.2013, and inquiry report dated 04.12.2014, vide which penalty of permanent withholding of 100% pension and permanent withholding of gratuity has been imposed upon him. He sought the following reliefs:-
"8A. It is respectfully prayed that this Hon'ble Tribunal may be pleased to set aside the Penalty Order No14033/11/2016- Delhi-II dated 09.06.2017 and consequently quash the Charge
-Memo No. F.5/06/2005/DOV/4604 dated 07.05.2018 & also set aside the Inquiry report dated 04.12.2014 & any other order passed thereto accepting the findings of the Inquiry officer and grant consequential reliefs to the applicant.11 Item No. 38 (C-4) OA 3668/2017
B. That this Hon'ble Tribunal may further be pleased to direct the respondent no.1 to release the retiral benefits such as Gratuity & Pension.
C. That this Hon'ble Tribunal may be pleased to direct the respondent no.1 to pay full pay and allowances to the applicant for the entire period of suspension i.e. from 18.02.2005 to 22.02.2006 and 10.01.2007 to 31.05.2013 (the date of his retirement).
D. That this Hon'ble Tribunal may further pleased to direct the respondent no.1 to grant the applicant benefits of VI - Pay Commission while fixing his pay and allowances as well as the pension.
E. That this Hon'ble Tribunal May be pleased to award costs of the present litigation to the applicant.
F. Any other or further order or orders more than one nature as this Hon'ble Tribunal may deem fit and proper in the interest of justice."
4. The conspectus of the case according to the learned counsel for the applicant is that while working as a Vice-Principal, the applicant was suspended in contemplation of disciplinary inquiry. Though, he was acquitted by the District Session Court, Rohini, Delhi in December 2010 he was not reinstated. On the contrary, a penalty of dismissal from service was imposed upon him, that to, without holding any inquiry. The Appellate Authority had quashed the appeal preferred by him against the said order with a liberty to hold inquiry against him in a timebound manner and to treat the intermittent period i.e., the date of dismissal order till further orders as deemed suspension.
5. Learned counsel of the applicant contended that though the applicant was placed under suspension and on 07.05.2013 was 12 Item No. 38 (C-4) OA 3668/2017 served with a charge memo for major penalty, the said action of the respondents had been hit by the principles of delay and laches as the same had been issued to him after a period of 8 years from the date of suspension and 3 years from the date of acquittal by the Criminal Court and just 24 days before his retirement on attaining the age of superannuation on 31.05.2013. He further contended that he had been deprived of his retiral dues such as Gratuity, Leave Encashment and pension commutation. He also urged that subsistence allowance was also not paid to him as per the 6th CPC. Aggrieved, he exhausted the legal remedies available to him by way of filing OA No. 3469/2013 and consequential C.Ps and MA which have already been discussed above. However, learned counsel for the applicant pressed upon the observation made by respondent no. 3 (UPSC) that the 'allegation of violation of sacred relationship of teacher and pupil was not proved'. He further pressed that the Prosecution Officer had admitted in her cross-examination that she did not collect or evince any documentary evidence to prove that the complainant (victim) was a student of class 10th from correspondence or any Government School. He alleged that no evidence/material different from what was there before the criminal court had been produced either before the Inquiry Officer or this Tribunal. Thus, the respondents have wrongfully issued the penalty order. Also, they have not considered the Judgment of the Madras High Court before passing such orders. Hence, the impugned 13 Item No. 38 (C-4) OA 3668/2017 penalty order dated 09.06.2017 is liable to be set aside. Accordingly, the present OA had been filed after getting liberty from the Hon'ble Delhi High Court.
6. Learned counsel for the respondents forcefully denied the contentions of the applicant and vehemently pressed for dismissal of this OA taking various pleas. Taking shelter of various judicial pronouncements as has been discussed below, of Hon'ble Apex Court and other Courts, the learned counsel of the respondents vociferously argued that the penalty order dated 09.06.2017 having sanction of the Hon'ble President of India, passed under Rule 9 of CCS (Pension) Rules, 1972 is legal and valid as the Hon'ble President had considered all the facts and circumstances of the case and thereafter only had passed the aforesaid order after giving due opportunity to the applicant. He further submitted that the representation preferred by the applicant had also been dealt with in terms of the directions of this Tribunal dated 10.04.2015 which were followed in true letter and spirit. Rebutting the applicant's argument that the findings of the Inquiry Officer was accepted by the competent authority without following the mandate of para 13 of the Tribunal's order dated 10.04.2015, learned counsel of the respondents stated that the same is not maintainable on the factual ground that the order was passed by the Tribunal much later i.e., on 10.04.2015 whereas the inquiry report is dated 04.12.2014 which was served to the applicant on 26.12.2014. Hence, the question of 14 Item No. 38 (C-4) OA 3668/2017 consideration of para 13 of the order dated 10.04.2015 by the disciplinary authority does not arise at all.
According to the learned counsel, their parawise reply gives a clear picture of the heinous crime of sexually abusing a girl student by the applicant. Consequent to which the applicant was arrested on 17.02.2005 under FIR No. 107/05 u/s. 376(G)/506/64 of IPC. Though he was acquitted by the Trial Court on the benefit of doubt, he was not given a clean chit in the criminal proceedings and as the acquittal was not on merit, the same ultimately led to disciplinary proceedings, which culminated in penalty of dismissal from service. To buttress his argument, learned counsel pressed upon DoPT's OM dated 21.07.2016 which stated that 'if the Court has not acquitted the accused honourably, the charge sheet may be issued. Later, the appellate authority turned down the order dated 28.02.2012 on the ground of non-feasibility to hold a free and fair inquiry against the applicant as departmental inquiry was initiated against one of the co-accused Sh. Om Prakash, TGT. Thus, the matter was remanded back to the disciplinary authority to initiate disciplinary proceedings against him under Rule 14 of the CCS (CCA) Rules, 1965. When the charges were found to be proved by the IO vide its report dated 04.12.2014, he was inflicted with major penalty after following the due procedure through Presidential Order, as by then, he stood retired.
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With regard to the delay aspect, it has been stated that considering the grave nature of misconduct of the applicant, the delay has no implication as the government being a model employer has to maintain and ensure discipline amongst its employees who are bound by the Conduct Rules.
With regard to the stay of the disciplinary proceedings granted by this Tribunal vide order dated 05.12.2014, the respondents submitted that the disciplinary authority was not aware of such stay order as the Education Department did not mention anything about it in their communication dated 04.02.2015 to them.
Dealing with the contention of the applicant with regard to CP No. 534/2016 in OA 3469/2013, they contended that the applicant did not disclose complete facts before the Tribunal and had not come with clean hands. Thus, the direction of this Tribunal to supply him punishment order was given without hearing the answering respondents.
The respondents very diligently argued their case and forcefully prayed for dismissal of the OA.
7. We have also come across written submissions filed by the learned counsel for the applicant wherein in addition to reiteration of some facts he relied upon plethora of citations of various Courts. All those are enlisted below :-
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(i) Capt. M. Paul Anthony vs. Bharat Gold Mines Ltd. & Anr. (1999) 3 SCC 679 ;
(ii) G. M. Tank vs. State of Gujarat & Ors. (2006) 5 SCC 446 ;
(iii) UOI &Ors. vs. Naman Singh Shekhawat (2008) 4 SCC 1 ;
(iv) N. Ramakirshnan vs. The Deputy Inspector General of Police, Tirunelveli Range, Tirunelveli 2012 SCC OnLine Mad 5248 ;
(v) Commissioner of Police, Delhi vs. H. C. Laxmi ;
(vi) Shri Harbhajan Singh vs. The Secretary O.A. No. 89/2014 passed by this Hon'ble Bench decided on 20.08.2014.
8. Written submissions filed by the respondents are also on record wherein specific query raised by the Bench about the outcome of disciplinary proceedings against the co-delinquent of the applicant has been answered in affirmative that the pension and gratuity of the co-delinquent has also been withheld which has been challenged by way of OA No. 1765/2022. It is further stated that the strict rules of evidence are not applicable to departmental proceedings, and the same are based upon preponderance of probability.
9. During the course of arguments, learned counsel for the respondents also handed over a compilation containing various judgments across the Bar upon which he relied. The same are reproduced below :-
(i) Commr. Of Police vs. Mehar Singh, 2013/SC, wherein Hon'ble Supreme Court held that quite often criminal cases end in acquittal because witnesses turn hostile. Such cquittals are not acquittals on merit. An acquittal based on benefit of doubt would not stand on par with a clean acquittal;17 Item No. 38 (C-4) OA 3668/2017
(ii) T. V. Gowda vs. State of Mysore, 1975/Karnataka wherein it has been held that Order of Criminal Court acquitting an accused on merits of case, would not bar disciplinary authority ;
(iii) Gulshan Kumar vs. GNCTD, 2019/CAT (PB) - No authoritative precedent that if employee acquitted in criminal case, the initiated of disciplinary proceedings become untenable. Such proportion runs contrary to law laid down by Hon'ble SC ;
(iv) State of M.P vs. Abhijit, 2018/SC - If acquittal has been recorded in a heinous case, and benefit of doubt has been given, employer may consider all relevant facts and take appropriate decision;
(v) Meer Singh vs. Commr. Of Police, 2014 CAT PB - Standard or proof in criminal and departmental proceedings are different.
Criminal cases ending in acquittal because of witnesses turning hostile and on the basis of benefit of doubt, do not stand at par with clean acquittal and departmental proceedings can be proceed ;
(vi) B. C. Chaturvedi vs. UOI 1995/SC - The Court/Tribunal in its power of judicial review does not act as appellate authority to re- appreciate the evidence and to arrive at its own independent finding on the evidence ;
(vii) Saroj vs. Commr. Of Police 2018/CAT (PB) - Acquittal because of witnesses turning hostile, however punishment upheld ;
(viii) Commr. Of Police vs. Mukesh 2013/Delhi High Court - Acquittal at criminal trial does not necessary mean that the person is innocent ;
(ix) N. Ramakrishnan vs. DIG - W.P (M.D) 3898/2008 - Judgment on which decision in previous OA is based ;
(x) DIG vs. S. Samuthirane- CA No. 8513/2012 - Reason is that the standard of proof required for holding a person guilt by a criminal court and the inquiry conducted by way of disciplinary proceedings is entirely different. In a criminal case, the onus of establish the guilt beyond reasonable doubt, the accused is assumed to be innocent. It is settled law that the strict burden of proof required to establish guilt in a criminal court is not required in disciplinary proceedings and preponderance of probability is sufficient ;
(xi) MSRTD vs. Dilip Uttam Jayabhay- CA 7403/2021 - Para 10.4, as per cardinal principles of law and acquittal in a criminal trial has no bearing or relevance on the disciplinary proceedings as per the standard of proof in both the cases are different and the proceedings operate in different fields and with different objectives ;
(xii) State of Haryana vs. Surender (Criminal Appeal No., 618-620 of 2001) - The conviction as recorded by the Trial Court was questioned in three appeals filed by the respondents. In the appeal the primary stand taken was variance in evidence as the role played by the accused person. Additionally, it was urged that no test 18 Item No. 38 (C-4) OA 3668/2017 identification parade was held and, therefore, the identification for the first time in the court was of no consequence. In response, learned counsel for the State pointed out that accused persons themselves declined to take part or to be put in the test identification parade for the purpose of identification. The High court brushed aside the stand of the State and as noted above directed acquittal. In support of the appeals, learned counsel for the appellant stated that the accused persons cannot take advantage of their own lapse. When they were asked to take part in test identification parade they refused to participate. That being so, the High court has not indicated any reason as to how the same was any help to the accused and High Court has wrongly drawn adverse inference.
(xiii) Hori Singh vs. State Bank of India- Writ No 30241-2016 - The only argument which has been advanced by the learned counsel for the petitioner, is that even if the petitioner did not deny the documents submitted in support of the charges by the presenting officer, it was the duty of the presenting officer to prove the contents of the documents by examining the witnesses and since the witnesses have not been examined to prove the content of the documents, the charges against the petitioner did not get proved and, therefore, the punishment order, appellate order and the order passed in review are liable to be quashed. It is settled law that interference with the orders passed pursuant to a departmental inquiry can be only in case of "no evidence". Sufficiently of evidence is not within the realm of judicial review. The standard of proof as required in a criminal trial is not the same in a departmental inquiry. Strict rules of evidence are to be followed by the criminal court where the guilt of the accused has to be proved beyond reasonable doubt. On the other hand, preponderance of probabilities is the test adopted in finding the delinquent guilty of the charge.
Last but not the least, the respondents prayed for the dismissal of the OA.
10. Heard the rival contentions, perused the records carefully, and examined the judgments cited by both sides.
In her statement recorded at Police Station, Sameypur Badli on 16.02.2005 the victim, a student for class X revealed that she was taking tuition from Shri O. P. Sharma, TGT In Sarvodaya Kanya Vidyalaya, No.2, Raghubir Nagar, Tagore Garden, Delhi and on 19 Item No. 38 (C-4) OA 3668/2017 12.02.2005 at about 7PM, he asked her to accompany him to get a certificate of X-class pass so that she could get service in Delhi Police and took her along with him from Keshopur stand in an Indica car No.DL3CW-0026 to Madhuban Chowk where one more person introduced to her as Principal of Rohini School, who was to issue her the certificate met them and for the said purpose she was asked to visit his. office. He also accompanied the applicant inside the car and thereafter she was taken to PWD rest house, Badli where two persons were already present in a room in the rest house. On an Indication given by Shri O. P. Sharma they made her to put off her clothes at the point of knife and thereafter first Sh. O. P. Sharma raped her and thereafter the said three persons including Shri Ved Prakash Sharma committed her rape. She was kept in the rest house for the whole night. On 13.02.2005 at about 7 PM she was made to sit in the car and was dropped near Keshopur bus depot with the threat to not disclose about the Incident to any one, otherwise she and her family could be killed. Nevertheless, the applicant disclosed the incident to her mother and thereafter she along with her mother went to the Police Station, Sameypur Badll on 16.02.2005 to lodge the report.
11. In the wake of the statement made by the victim, FIR no. 107/05 under section 376 / 106 / 34 IPC was registered on 17.02.2005 at Police Station, Sameypur Badi. During the 20 Item No. 38 (C-4) OA 3668/2017 Investigation, the accused Sh. Om Prakash Sharma was arrested, the indica car used to transport the victim was seized and at the Instance of Shri Om Prakash Sharma, Shri Ved Prakash Sharma, i.e. the applicant, herein, and Shri Jagdish were arrested. The accused pointed out the place of incident. The bed sheet used at the time of incident was seized. All the four accused were got medically examined and the samples of semen and blood were preserved. On 19.02.2005, the statement of victim was recorded before Smt. Archna Sinha, Metropolitan Magistrate under Section 164 Cr.PC. Another accused, Sh. Pratap Singh found Involved in the Incident was also arrested on 24.05.2005. Nevertheless, in view of hostile deposition by the victim, her mother and Chowkidar of the rest house and in view of the fact that there was no other evidence that links the applicant herein with the offence, giving him the benefit of doubt, the Court of ASJ-06 (OUTER), Rohini, Delhi acquitted him of the charges under section 376G/506/34 IPC. With the view that the applicant was not acquitted of the charges honorably and the statement made by the victim under section 164 of Cr. PC, her mother and Mr.Hanuman Singh, Chowkidar, supported the charges, the Chief Secretary, Delhi ordered dismissal of the applicant from service under Rule 19 (II) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. The order was challenged by the applicant before the appellate authority and having reversed the order passed by the disciplinary authority, the 21 Item No. 38 (C-4) OA 3668/2017 appellate authority remitted the matter back to it with liberty to initiate departmental proceedings under Rule 14 of CCS (CCA) Rules, 1965 and complete the proceedings within specific time limit. Para 7 of the order of Appellate authority read thus:
"7. Now therefore, Lt. Governor Delhi hereby sets aside the Impugned order dated 28.02.2012, without going into merits of the case, and remands the case back to Disciplinary Authority, Chief Secretary, with liberty to initiate Disciplinary Proceedings under Rule 14 of CCS (CCA) Rules, 1965 and complete the proceedings In a time bound manner. The Intervening period, between the date of dismissal and the date of reinstatement consequent to Implantation of this order, will be considered as on deemed suspension, entitling Shri Ved Prakash Sharma to the minimum subsistence allowance prescribed under FR 53, from the date of his dismissal. The Disciplinary Authority may decide further continuation of his suspension during pendency of Disciplinary Proceedings."
12. Vide charge memorandum dated 07.05.2013 following charges were alleged against the applicant.
"ARTICLE-I That Sh. Ved Prakash Sharma, Vice Principal(under suspension), while working at SBV, West Patel Nagar, Delhi 2005-06 has committed misconduct in as much as he indulged himself into a heinous crime to sexually abuse a girl student. He was arrested on 17-02-05 for above said crime as an FIR No.107/05 dated 17-02-05 under Section 376(G)/506/34 of IPC by name was lodged against him. Trial of the same has been held in a fast-track criminal court. Court vide its judgment dated 21-12-2010, having given benefit of doubt, acquitted him of the charges under Section 376G/506/34 of IPC. He was not given clean chit in the said case.
Thus, Shri Ved Prakash Sharma, Vice-Principal(under suspension) by his above act exhibited a grave misconduct, involving moral turpitude, sexual crime and violated the sacred relationship of teacher and the pupil, which is unbecoming of a Govt. servant and thereby contravening the provisions of Rule 3 of CCS(Conduct) Rules, 1964. On the basis of a complaint, a First Information Report, no. 107/05, under Section 376-G/506/34 of the Indian Penal 22 Item No. 38 (C-4) OA 3668/2017 Code, 1860, alleging that one Sh. O.P. Sharma, giving tuitions to the complainant, on pretext of issuing 10th pass certificate, which would enable her in getting job in Delhi Police, lured the complainant to accompany him in his car, the complainant agreed, sat in the car, on the way, Sh. Ved Prakash Sharma, met said Sh O.P. Sharma, was introduced to the complainant as Principal of some Rohini School, who would be issuing said certificate, Sh. Ved Prakash Sharma too joined the said Sh. O.P. Sharma and the complainant and they reached PWD Rest House, Badli, Delhi, where other accomplices of the said Sh. O.P. Sharma were already present. On signal of said Sh. O.P. Sharma, clothes of the complainant were forcefully got removed on knife point, first the said Sh. OP. Sharma thereafter his accomplices including said Sh. Ved Prakash Sharma, Vice Principal, Directorate of Education, Government of NCT Delhi, forcefully committed rape on the complainant. The complainant for the whole night was kept at the said rest house and on early morning of (13.02.2005, the complainant was made to sit in the car, thereafter she was dropped near Kesho Pur Bus Depot, with threat not to disclose anything about the incident to anyone else, the complainant and her family members would be killed. Out of fear, the complainant didn't disclosed the incident, it was only on 16.02.2005, when the complainant disclosed the incident to her mother, thereafter the complainant accompanied her brother to reach Police Station, Samaypur Badli, on 16.02.2005, where post completion of requisite formalities, aforesaid First Information Report was lodged by the Police on 17.02.2005, Investigation, recording of statements under section 161 of the Code of Criminal Procedure, 1973, medical examination etc., were conducted, statement of the complainant before Metropolitan Magistrate, on 19.02.2005, was got recorded under section 164. of the Code of Criminal Procedure, 1973 which reads:
I live with my mother, father and brother sister and studying in 10th class through correspondence. I used to take tuitions from Sh. O.P. Sharma who is Vice Principal of SKV, Tagore Garden. On 12 of this month he told me that Principal of Rohini School is known to him and she could go to him who would issue a 10 pass certificate. in the evening of the said day O.P. Sharma took me to Keshopur Sabzi Mandi at 7.00 PM in Indica car to Madhuban Chowk O.P. Sharma took a person from stand into the vehicle and told me that said person is the Principal of Rohini School, and he will prepare and give me a 10" pass school certificate. He told that for this she 23 Item No. 38 (C-4) OA 3668/2017 will have to go to his office. I said that I have not informed at my home whereupon he stated that he would drop me back. Thereafter, they took me to a Samaypur Badli in a guest house telling me that Principal of the Rohini School has his office here. When we reached there 03 persons were already present out of them one was Pratap Singh and I could not know the name of other two. One of them place a knife on me and removed my clothes. Thereafter, Om Prakash Sharma forcibly raped me. After him the person who was informed to be Principal of Rohini School raped me then remaining 03 persons also raped me one by one. Then 03 persons left the place / was kept there through the night and at 6:00 AM in the morning O.P. Sharma and the Principal of the Rohini School dropped me at Keshopur Mandi. He threatened me if I told this incident to anyone they would kill me and my kin. I kept crying silently for two days then I informed complete incident to my mother and then my brother took me to the police station.' Said Sh. Ved Prakash Sharma. Vice Principal, Directorate of Education, Government of NCT Delhi, alongwith said Sh.
O.P. Sharma and his other accomplices were arrested, Test Identification Parade at Tihar Jalil, New Delhi was arranged, where, said Sh. Ved Prakash Sharma, Vice Principal, Directorate of Education, Government of NCT Delhi, refused his participation in Test Identification Parade, the statement refusing Test Identification Parade, on 26.02.2005, was recorded by Metropolitan Magistrate, Delhi.
The case was sent for trial, where, out of 15 prosecution witness, 12 including the Metropolitan Magistrate, who has recorded the statement of the complainant/prosecutrix under section 164 of the Code of Criminal Procedure, 1973 and also statements of the said Sh. Ved Prakash Sharma, refusing participation in Test Identification Parade deposed in favour of the case of the prosecution however, prosecution witness no. 21.e the complainant, Prosecution witness no.3 i.e. the watchman of PWD rest house and Prosecution witness no. 8 i.e, the mother of the complainant/prosecutrix turned hostile, as such vide judgment dated 21.12.2010, as passed by Hon'ble Additional Sessions Judge 06 (Outer), Rohini Court, Delhi in case no.214/10, accused in the case, including said Sh. Ved Prakash Sharma, were acquitted of the charges, on benefit of doubt.
Considering aforesaid judgments, records of the case, vide order dated 28.02.2012, a penalty of dismissal from 24 Item No. 38 (C-4) OA 3668/2017 service was imposed upon the said Sh. Ved Prakash Sharma Considering appeal of the said Sh. Ved Prakash Sharma, Vice Principal, Directorate of Education, Government of N.C.T. Delhi, without going into the merits of the case, holding dispension of disciplinary proceedings and issuance of dismissal order under rule 19(ii) of CCS (CCA) Rules, 1965 read with Article 311(2) of the Constitution of India, Improper, vide his order dated 05.11.2012, the Appellate Authority has set aside the aforesaid penalty order and remanded back the case to the Disciplinary Authority with liberty to initiate Disciplinary Proceedings under rule 14 of CCS (CCA) Rules, 1965 and complete the proceedings in a time bound manner. The intervening period, has been ordered as deemed suspension and continuation of suspension has also been ordered by the competent authority.
The aforesaid act amounts to gross misconduct on the part of Sh. Ved Prakash Sharma, Vice Principal, Directorate of Education, Government of N.C.T. Delhi, apart from moral turpitude that too on the part of a teacher, such misconduct shatters the very foundation of sacred relationship between teacher and pupil and erodes the trust and sanctity attached with teaching profession, said misconduct, has left the impression in society that children studying in schools cannot be left safely to the authority of such teachers. By his above act, Sh. Ved Prakash Sharma, Vice Principal, Directorate of Education, Government of N.C.T. Delhi, has exhibited lack of integrity, brought defame to the Government/his employer and has acted in a manner unbecoming of a Government servant, thereby contravening the provisions of sub rule 1 (1) and (ii) of (iii) of Rule 3 of C.C.S. (Conduct) Rules, 1964, as such charge is leveled upon him in Annexure-l, statement of article of charge.
13. With the charge memorandum a list of the documents relied upon by the prosecution to prove the charges was annexed at Annexure-III. The following documents were pressed in service to prove the charges.
"List of documents by which the article of charge against Sh. Ved Prakash Sharma, Vice Principal, Directorate of Education, Government of N.C.T. Delhi is proposed to be sustained.25 Item No. 38 (C-4) OA 3668/2017
01. Copy of First Information Report no. 107/05 dated 17.02.2005
02. Charge sheet filed by the Police in Court in case First Information Report no.107/05
03. Inner case diary of the case First Information Report no. 107/05
04. Statement of the complainant/prosecutrix dated 19.02.2005, recorded, under section 164 of the Code of Criminal Procedure, 1973
05. Copy of statement dated 26.02.2005, as given by Sh. Ved Prakash Sharma, before Metropolitan Magistrate, Delhi, refusing participation in Test Identification Parade.
06. Copy of judgment dated 21.12.2010, passed by Hon'ble Additional Sessions Judge -06 (Outer), Rohini Courts, Delhi in case SC no.214/10
07. Copy of order no.5/6/2005/DOV/1737-1739 dated 28.02.12
08. Copy of order no. F.5/6/2005/DOV/10526-27 dated 05.11.2012
09. Copy of order no.F.5/6/2005/DOV/1835-1843 dated 26.02.13."
The only witness called by the prosecution in support of the charges was Smt. Parvati Devi, the then Sub Inspector and Investigating Officer, of First Information Report No. 107/05 dated 17.02.2005, Police Station : Samaypur Badli, Delhi. From the IO's report, it is evident that the opportunity to cross-examine the only witness was availed by the applicant.
14. During cross examination, the witness stood true to her statement and confirmed the same. No attempt was made by the applicant to disprove the documents. Applicant could not bring any 26 Item No. 38 (C-4) OA 3668/2017 witness or document to prove his defense that he had been falsely implicated in the case due to an enmity with an advocate and or an SHO. The applicant could not even name the advocate and the SHO in his defense. Clearly, the defense of the applicant was vague and merely a shot in the dark. The IO has rightly rejected the same. Further CFSL has given a positive report of bed sheet, while testing the same for blood and semen samples taken during the investigation. It is only on analyzing the statement of the witness, documents, reports and the defense of the applicant the IO has concluded the charge proved.
15. Insofar the delay is concerned respondents have explained that the delay was not administrative rather the same occurred due to quashing of the DA's punishment of dismissal by the Appellate Authority with liberty to the disciplinary authority to initiate enquiry proceedings. In exercise of liberty the proceedings were initiated. Applicant has accepted the said order since he chose not to challenge the order of the Appellate Authority. Therefore, the proceedings are not hit by delay.
16. We are conscious of the fact that the Tribunal has limited powers in disciplinary cases. In Union of India and Ors. vs. P. Gunasekaran, reported in (2015) 2 SCC 610, Para 13), Hon'ble Apex Court held as follows:
"13. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re- appreciating even the evidence before the inquiry officer.27 Item No. 38 (C-4) OA 3668/2017
The finding on Charge I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re-appreciation of the evidence. The High Court can only see whether:
(a) the inquiry is held by a competent authority;
(b) the inquiry is held according to the procedure prescribed in that behalf;
(c) there is violation of the principles of natural justice in conducting the proceedings;
(d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;
(e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;
(f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;
(g) the disciplinary authority had erroneously failed to admit the admissible and material evidence;
(h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;
(i) the finding of fact is based on no evidence.
In the present case the applicant serving as Vice Principal, was named at the instance of the main accused during investigation. The statements recorded by the police and the magistrate indict him. Further CFSL has given a positive report on a few samples of cloth.
18. His acquittal on benefit of doubt is of not much consequence since it is observed that parallel disciplinary proceedings are permissible. We observe that the opportunity of 28 Item No. 38 (C-4) OA 3668/2017 defense was granted and availed by the applicant. The witness even during cross-examination stuck to her statement and the applicant failed to produce any defense witness. His statement that he has been falsely implicated does not appear plausible.
The legal position as well as Article 309 of Indian Constitution also fortifies
19. In view thereof and upon considering the case on the touchstone of UOI vs. Gunasekar (supra) as well as in the entirety of the facts and circumstances, in our considered view, the orders passed by the Respondents do not warrant any interference, accordingly, the instant OA fails and is dismissed.
(Dr. Sumeet Jerath) (Harvinder Kaur Oberoi)
Member (A) Member (J)
/Mbt/