Central Administrative Tribunal - Delhi
Sub-Inspector Vinod Kumar vs Govt. Of Nct Of Delhi Through on 6 May, 2013
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-2078/2008
MA-1049/2013
Reserved on : 26.04.2013.
Pronounced on :06.05.2013.
Honble Mr. G. George Paracken, Member (J)
Honble Mr. Shekhar Agarwal, Member (A)
Sub-Inspector Vinod Kumar,
S/o late Shri Shyam Kumar,
R/o D-90, DDA Flats MS Park,
Delhi. .. Applicant
(through Sh. Sachin Chauhan, Advocate)
Versus
1. Govt. of NCT of Delhi through
The Commissioner of Police,
I.P. Estate, Police Headquarters,
MSO Building,
New Delhi.
2. The Jt. Commissioner of Police,
Armed Police,
I.P. Estate, Police Headquarters,
MSO Building,
New Delhi.
3. The Dy. Commissioner of Police
VIth Bn., through I.P. Estate,
Police Headquarters,
MSO Building,
New Delhi.
4. The Enquiry Officer,
ACP DE Cell,
DE Cell,
Asaf Ali Road,
Delhi. . Respondents
(through Ms. Harvinder Oberoi, Advocate)
O R D E R
Mr. Sehkhar Agarwal, Member (A) The applicant has sought the following relief:-
(i) To set aside order dated 20.10.2005 where by the DE is initiated against the applicant without applying the mind on rule 12 of Delhi Police Punishment and appeal rules, Order dated 01.06.07 where by the extreme punishment of dismissal from service is imposed upon the applicant, Order dated 18.09.2007 whereby the appeal of the applicant is rejected by the appellate authority, Findings of the EO and Order dated 25.10.2006 whereby the request of the applicant for keeping the DE in abeyance till the conclusion of the trial is rejected and to further direct the respondents to reinstate the applicant in service with all consequent ional benefits including seniority and promotion and pay and allowances.
Any other relief which this Honble court deem fit and proper may also be awarded to the applicant.
2. Brief facts of the case are that the applicant was working as Sub-Inspector in Delhi Police, when on 20.10.2005, disciplinary proceedings were initiated against the applicant on the following charges:-
I, E.V.S. Rathi, E.O./ACP/D.E. Cell/Delhi charge you S.I. Vinod Kumar No. D/2045 (PIS No. 16900009) that at present you are involved in the following Criminal cases:-
Sl.
No. CASE ALLEGATION IN BRIEF
1. FIR No. 21/96 u/s 420/34 IPC P.S. Civil Lines, Delhi. He alongwith his two other associates cheated 10 Gold Biscuits worth Rs. 6 Lacs from one Umesh Chandra an employee of Rajender Soni, a jeweler r/o A 63/4, G.T.K. Road, Indl. Area, Delhi.
2. FIR No. 284/2000 u/s 420/406/34 IPC P.S. Mansarovar Park, Delhi. He cheated Rs. 7 Lacs from one Dharmender Sharma r/o C-52/40-A, Village Gamri, Bhajanpura, Delhi on the pretext of delivering custom goods in low prices for business purpose.
3. FIR No. 56/2001 u/s 25/54/58 Arms Act, P.S. New Usmanpur, Delhi. He threw two live cartridges in the house of Dharmender Sharma, complainant of above case FIR No. 284/2000 with ulterior motives alongwith threatening letter that he will get him hanged in false case.
Your were also involved in the following five criminal case:-
Sl.
No. CASE ALLEGATION IN BRIEF
1. FIR No. 126/94 dated 7.5.94 u/s 448/34 IPC PS Vivek Vihar, Delhi. The SI with one of his associate trespassed in Flat No. 106/107-A, DDA Flats, Jhilmil Colony Delhi in furtherance of their common criminal intention. Later on the SI was acquitted in the criminal case by the court of Ms. Nivedita anil sharma, MM Karkardooma Courts vide judgment dated 22.7.98 as the complainant had deposed before the Honble court that he had compromised the matter.
2. FIR No. 253/95 dated 26.4.95 u/s 429/379 IPC P.S. Shakarpur, Delhi. The case was registered on the complaint of one Sh. Aslam, Siddiqui on the allegations that the SI offered him a proposal of purchasing MIG Flat in Vivek Vihar in a vey cheap rate and took Rs. 2 Lakhs. The SI further told the complainant that the money in question has been stolen by someone from his Scooters dikki. The SI, lateron, was acquitted by the Court of Deepak Garg MM Shahdra Courts vide judgment dated 19.5.99 as prosecution failed to prove the guilt of the accused.
3. FIR No. 645/96 dated 16/8/96 u/s 411/414/34 IPC PS Ambedkar Nagar, Delhi. The case was registered against the SI and others as a Gold biscuit was found cancelled. The accused has been discharged in this case as he has been arrested in relevant case of PS Civil Line vide FIR No.21/96.
4. FIR No. 512/98 dated 4.12.98 u/s 420/34 IPC PS Shakarpur, Delhi. The case was registered against the SI for cheating one Tarsel Lal Beri to the tune of Rs.15 Lakhs. This case concluded as cancelled by SHO PS Shakarpur on 18.6.2000 and put up before the concerned Honble MM for final orders who accepted the conclusion on 25.4.2000.
5. FIR No. 123/2001 dated 14/5/2001 u/s 506/507 IPC PS New Usmanpur, Delhi. The case was got registered by one Dharmendra Sharma for threatening him of dire consequences. The case has been sent as untraced on 28.5.03.
Although you have been acquitted in the two criminal cases, two cases have been cancelled and one has been sent as untraced. A number of complaints were also received against you. The acquittal in the two cases also shows that pressure tactics have been applied to intimidate or win over the witnesses. You SI Vinod Kumar was enlisted in Delhi Police as Sub-Inspector in the year 1990 and first case against you was registered in 1994 and since then, criminal cases have been registered against you regularly.
You SI Vinod Kumar have shown total disregard of your status as a police officer by involving yourself in large number of criminal cases/complaints. Instead of discharging your sacred responsibility of upholding the rule of law, you yourself indulged in criminal cases, which has not only tarnished the image of Delhi Police but also badly shattered the faith of common man in the government authority.
The above act on the part of you SI Vinod Kumar amounts to grave misconduct, unbecoming of a police officer, which is unwarranted in the disciplined force, which renders you liable for punishment under the provisions of Delhi Police (Punishment & Appeal) Rules-1980.
3. The applicant denied the charges and an enquiry was conducted. The Enquiry Officer (EO) submitted his report on 16.03.2006 holding that the charge against him has been proved. On the basis of this report, the Disciplinary Authority (DA) passed an order of dismissal against the applicant on 01.06.2007. The applicant appealed against the said order on 22.06.2007. However, the Appellate Authority (AA) rejected the appeal on 18.09.2007. Aggrieved by the same, the applicant has filed OA No.2078/2008 before this Tribunal. This was dismissed vide order dated 03.02.2011. Subsequently on a review application moved by the applicant the order of the Tribunal dated 03.02.2011 was recalled and OA was restored. It has now come up for adjudication before us.
4. The applicant has alleged that the orders of the DA regarding initiation of departmental enquiry and the findings of EO are vitiated on the grounds that the same are in violation of Rule-12 of Delhi Police (Punishment & Appeal) Rules, 1980. According to him, the EO and DA did not apply their mind to the aforesaid Rule. There is a clear distinction between won over and hostile. In the present case, the Trial Court had declared the witnesses to be hostile. As such, this does not fall with the exceptions of Rule-12 of Delhi Police (Punishment & Appeal) Rules, 1980, which lays down that in case of judicial acquittal the delinquent can be punished departmentally on the same charge only when in the opinion of the Court or in the opinion of Dy. Commissioner of Police, the prosecution witnesses have been won over.
5. Further, the applicant has stated that the charge levelled against him has been proved merely on suspicion and surmises and not on the basis of evidence that had come on record in the departmental enquiry proceedings. He has stated that he has been proceeded against departmentally for being involved in various criminal cases vide FIR Nos. 126/94 IPC PS Vivek Vihar Delhi, 253/95 dated 26.04.95 u/s 420/379 IPC PS Shakar Pur, Delhi, 645/96 dated 16.08.96 u/s 411/414/34 IPC PS Ambedkar Nagar, Delhi, 512/98 dated 4.12.98 u/s 420/34 IPC PS Shakar Pur, Delhi & 123/2001 dated 14.05.2001 u/s 506/205 IPC PS New Usman Pur, New Delhi though he had already been acquitted by Trial Courts in these cases. The applicant has further stated that he also stands acquitted in FIR No. 21/1996 u/s 420/384/411/34 IPC vide judgment dated 15.02.2006 and in that case the DA had taken a conscious decision that the applicant need not be proceeded against departmentally. Yet the charge has been found to be proved by EO.
6. According to the applicant, he had been making representations to the DA to keep his departmental enquiry proceedings in abeyance till the decisions in the Criminal Courts. However, the DA vide order dated 25.10.2006 rejected his representation.
7. The applicants further contention is that summary of allegation against him is not supported by the documents given to him and is, therefore, vague for that reason. It is mentioned in the allegations that a number of complaints were received against the applicant but there was no specification as to what these complaints were, who were the complainants and what was their nature. No documents pertaining to these complaints were supplied to him nor was any complaint proved in the departmental enquiry by the EO in relation to the allegation levelled against the applicant. Yet the charge was framed and found to be proved by the EO.
8. In the summary of allegation, the EO has laid down that the acquittal of the applicant in two criminal cases shows that pressure tactics have been applied to intimidate or win over the witnesses though no such finding has been arrived at by the Trial Court. If the EO had any independent material to establish that the applicant had applied pressure tactics then the same has not been brought on record.
9. The next ground taken by the applicant is that the allegation against the applicant is based on suspicion and surmises inasmuch as it has been alleged that the similarity of the complaints alleging cheating indicate that there seems to be some truth in these allegations. The applicant has contended that if this action constitutes a misconduct then this would imply that for falsely implicating a person one only needed to make various complaints of the same nature against him and that would have to be enough to conclude that the misconduct has been committed by him.
10. The next ground taken by the applicant is that the enquiry is vitiated as the same is in violation of Rule-16(9) of Delhi Police (P&A) Rules, 1980 as the EO has not recorded findings in respect of each article of charges supported by the evidence that has come on record. He has alleged that Prosecution Witness No.15 (Dharamender Sharma), who is a relative of the applicant from his wife side and has personal enmity against the applicant has made wild allegations against the applicant by even alleging that applicant has links with ISI and Dawod Ibrahim. PW-15 could not prove these allegations clearly demonstrating that these charges were concocted and baseless.
11. Applicant also stated that the proceedings are vitiated since approval of Additional Commissioner of Police was not taken in terms of sub-rule-2 of Rule-15 of the Delhi Police (P&A) Rules, 1980. The AA has also mechanically rejected the appeal completely ignoring the fact that subsequent to acquittal in a criminal case, mere involvement in a criminal case cannot come within the definition of misconduct. If at all the respondents wanted to proceed against him in relation to the same charge then Rule-12 of Delhi Police (P&A) Rules had to be followed.
12. Respondents in their reply have stated that the applicant was involved in several criminal cases. This amounted to grave misconduct unbecoming of a police officer, which is unwarranted in a disciplined force. Hence, he was proceeded against departmentally. Initially, the departmental enquiry was entrusted to Sh. Yashvir Singh, ACP/6th Bn. DAP. Later on, it was transferred to Sh. H.V.S. Rathi, ACP. The EO conducted the departmental enquiry according to the prescribed procedure. He prepared summary of allegations along with list of witnesses and documents relied upon and served the same on the applicant. The applicant did not agree with the allegations and preferred to face the departmental enquiry. During the course of the enquiry, the EO examined 17 PWs. PWs No. 1 to 9 and 11 to 13, who were all police officials, have proved the registration of criminal cases against the applicant. PWs No. 10,14,15,16 & 17 are all public witnesses and complainant in various criminal cases against the applicant. They have all supported prosecution story made during departmental enquiry proceedings. The delinquent was given full opportunity to produce defence witnesses but instead of submitting list of DWs, he submitted a representation requesting therein to keep the departmental enquiry in abeyance till the decision of criminal cases pending against him and also requested that he be reinstated from suspension. His request was rejected by the competent authority. The EO again directed him t produce a list of DWs. However, the applicant insisted that he will not produce DWs till his request of keeping the departmental enquiry is accepted. Thereafter, the EO submitted his findings to the DA concluding therein that the charge against the delinquent stood proved.
13. During the course of the proceedings, the applicant had also filed OA-2394/2006 (Vinod Kumar Vs. Govt. of NCT of Delhi) challenging the decision of the DA to hold departmental enquiry against him during the pendency of the criminal cases. This Tribunal dismissed the OA as withdrawn with the following order:-
Arguments in this case have been heard for sufficiently long time. In the midst of arguments, counsel representing the applicant states that the Original Application may be dismissed as withdrawn and all points raised in this Original Application shall now be taken before the Disciplinary Authority. With leave and liberty, as asked for, we dismiss this Original Application as withdrawn.
14. The respondents have further contended that the DA has meticulously gone through the departmental enquiry file and has appraised the evidence brought on record. Relying on the judgment of Honble Supreme Court in the case of Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd., AIR 1999 SC 1416 they have stated that the scope and standard of proof required in criminal proceedings and departmental proceedings are totally different and, therefore, there cannot be any bar on carrying both simultaneously. In the instant case, the departmental enquiry is based on different set of allegations. The charges in the departmental enquiry do not come into specific allegations which are levelled in a particular criminal case pending against him. Hence his request is not legally tenable and acceptable. The respondents have argued that the involvement of the applicant in 8 consecutive criminal cases shows that he has committed grave misconduct and his continuous retention in disciplined force is not warranted in public interest. They have denied that there has been any violation of either Rule-12 or Rule-15(2) of the Delhi Police (P&A) Rules, 1980. They have, therefore, prayed that the O.A. be dismissed.
15. We have heard both parties and have perused the material on record.
16. First we have gone through the charges levelled against the applicant. The summary of allegations has been given above in this judgment. The applicant has been proceeded against for being involved in a number of criminal cases. Status of criminal cases is given in the summary of allegations itself. We find from the above that in almost all the cases he has either been acquitted by the Court or the case has been cancelled for one reason or the other. Two cases, namely, FIR No. 284/2000 and FIR No. 56/2001 are still pending in Courts. Thus, as far as Criminal Courts are concerned in none of the cases any of the charge has been proved against him.
17. However, from the summary of allegations it appears that because various criminal cases were pending against him, the respondents framed a new charge against the applicant, namely that he was involved in various criminal cases. The applicants counsel has argued that mere involvement in a criminal case cannot constitute misconduct. For if this was so, then any police officer could be falsely implicated by simply making a series of complaints against him in various police stations which would lead to registration of various cases against him.
18. We find some merit in this argument. We notice from the facts of the instant case that none of the cases registered against the applicant has been proved in the Court so far. Therefore, all the cases registered against him are up till now only allegations. Even the enquiry conducted by the respondents established that the delinquent officer was involved in several criminal cases. The enquiry did not go into the specific charges in each of the case as is evident from the counter of the respondents. Para-24 of which reads as follows:-
The charge against the applicant is mainly that he remained involved in various criminal cases of cheating, forgery and Arms Act etc. throughout his service Carrier. All PWs examined by the Enquiry Officer are either its duly officer, investigating Officer or even complainant in the criminal cases have deposed that he was involved in those cases. It all shows his criminal bent of mind Again in Para-25, it is stated as follows:-
The involvement of the applicant in eight consecutive criminal cases shows that the S.I. has committed grave misconduct and his continuous retention in Police force is not warranted in the Public interest:
19. In our opinion, mere involvement in a criminal case by itself would not constitute misconduct. During the course of arguments, it was admitted by both the sides that none of the cases registered against the applicant pertained to official discharge of his duties nor were these cases registered by the department or at the behest of the department. All cases were registered by private complainants. The applicant has stated in his O.A. that he had enmity with one Dharmender Kumar Sharma, who was a relative from his wife side. Thus, it cannot be ruled out that on grounds of personal enmity complaints were lodged against the applicant resulting in registration of several criminal cases against him. This by itself cannot be taken to be misconduct as the applicant can very well argue that he had no role in registration of cases against him. Registration of cases against the applicant did not involve any deliberate act of omission or commission by him. Hence orders of DA & AA cannot be sustained.
20. Admittedly, the applicant has been acquitted in many of these criminal cases. Nothing prevents the department from proceedings against the applicant on the same set of charges as per Rule-12 of Delhi Police (P&A) Rules, 1980 if conditions provided therein are satisfied. Such a departmental enquiry if conducted would be to prove the same charge which was there in the Criminal Court but could not be established there because of Stricter standard of proof required there. However, in the instant case, we find that the enquiry conducted was only with the purpose of establishing that the applicant was involved in several criminal cases and not to prove the charge contained therein. We agree with the respondents that Rule-12 and Rule-15(2) of the Delhi Police (P&A) Rules, 1980 were not attracted in the present case because the enquiry conducted was on a different charge, namely, that the applicant was involved in various criminal cases. However, we find that this charge itself is not really a misconduct and therefore not sufficient for proceeding against the applicant.
21. In the summary of allegations, it is also mentioned that a number of complaints were received against him. However, no material pertaining to those complaints was made available to the applicant. Further, it has been alleged that acquittal in two cases shows that pressure tactics has been applied by the applicant to intimidate or won over the witnesses. The respondents could not lead any evidence to establish this either. The applicant, on the other hand, argued that no such observation has been made by the Trial Court. In the absence of any such finding from the Court, we find it difficult to comprehend as to how the respondents have come to such a conclusion. This gives credence to the arguments of the applicant that he has been proceeded against on the basis of suspicion and surmises.
22. On the basis of above, we come to the conclusion that the impugned orders of the AA and DA cannot be sustained and the same are quashed. Accordingly, the O.A. is allowed. We direct that the applicant will be reinstated in service with consequential benefits of seniority and pay fixation. The respondents will separately pass an order regarding how his suspension period will be treated. The respondents will also be at liberty to proceed against the applicant departmentally, if they so desire, in accordance with the provisions of Delhi Police (P&A) Rules, 1980. There shall be no order as to costs.
(Shekhar Agarwal) (G. George Paracken)
Member (A) Member (J)
/Vinita/