Central Administrative Tribunal - Delhi
Suresh Kumar vs Govt. Of Nct Of Delhi on 12 August, 2011
Central Administrative Tribunal Principal Bench, New Delhi O.A.No. 4119/2010 This the 12th day of August 2011 Honble Shri George Paracken, Member (J) Honble Dr. Veena Chhotray, Member (A) Suresh Kumar Constable (Ex.) of Delhi Police PIS No.28800705 S/o Sh. Lakhi Ram R/o H.No.619, Gali No.12, L-1, SangamVihar, Bandh Road, New Delhi-62. Applicant (By Advocate: Sh. Anil Singal) Versus 1. Govt. of NCT of Delhi Through Commissioner of Police PHQ, IP Estate, New Delhi. 2. Special Comm. of Police, Southern Range, PHQ, IP Estate, New Delhi. 3. D.C.P. (7th Bn. DAP) PTS Malviya Nagar, New Delhi. 4. Add. D.C.P. (North-East Distt.) SeelamPur, Delhi. Respondents (By Advocate: Sh. Amit Anand) O R D E R
Honble Shri George Paracken:
The applicant is aggrieved by the Annexure A-1 Order dated 26.5.2009 initiating the departmental proceedings against him, Annexure A-2 findings dated Nil of the enquiry officer, Annexure A-3 punishment order of the disciplinary authority dated 11.2.2010 imposing upon him the punishment of forfeiture of two years approved service permanently entailing proportionate reduction in his pay and treating the suspension period from 27.6.1996 to 11.5.2008 as period not spent on duty for all intents and purposes, and Annexure A-4 appellate order dated 4.8.2010 by which his appeal has been rejected and aforesaid orders of the disciplinary authority has been upheld.
2. The charge against the applicant was that on 26.6.1996, while he was posted in P.S. Bhajanpura, he along with four other persons have proceeded to Rajasthan in a private car No. DL4C-C-8788 in order to apprehend one Ishwar Singh s/o Kastura r/o Village Isharda Distt. Tonk, Rajasthan whom they suspected to have stolen money belonging to one of his close relative, without taking any permission or leave from his office. As a result, he was marked absent vide DD No.77-B dated 28.6.96 at P.S.Bhajanpura. He resumed his duty only on 16.7.96 vide DD No.32B P.S. Bhajanpura after authorisedly absenting from duty for three weeks. Further, on 2.6.6.96, he along with S/Shri Darshan Singh, Shastri, Praveen, and Ghanshyam kidnapped the said Ishwar in the above mentioned Ambassador car from village Hanumanpura, Distt. Tonk Rajasthan. On the basis of the information about the aforesaid incident received from Sh. Kazor, brother of Ishwar Singh, Police apprehended all of them while they were taking Ishwar Singh along with them and registered FIR No.119/96 dated 27.6.96 against them u/s 365/323/B4 IPC in PS Duni District Tonk Rajasthan.
3. On conclusion of the enquiry proceedings, enquiry officer held that on 26.6.96 applicant was posted in P.S. Bhajanpura, North-East Distt. Delhi and he left the office without taking permission or leave and he was arrested in the said case on 27.6.96. He resumed his duty only on 16.7.96 vide DD No.32B, P.S. Bhajanpura after unauthorizedly absenting himself from duty for three weeks. He was, therefore, placed under suspension vide order dated 18.7.96 but reinstated in service on 12.5.2008 vide order dated 12.5.2008. The above facts have also been verified from the documents, i.e., photocopy of the DD entries enclosed with the DE file and the absentee notice. The duty of the applicant on 26.6.96, 27.6.96 & 28.6.96 could not be verified because the record of PS Bhajanpura was destroyed on 11.5.1999. However, he was acquitted by the Court due to lack of evidence and suspicion over the place of arrest of accused persons. In the defence statement dated 13.5.98 the applicant has admitted that he had gone to Rajasthan along with four others. The statement of defence witnesses revealed that he was taken by Rajasthan Police from his residence, i.e. Jhajjar, Haryana on 26.6.96. He did not give any intimation regarding his involvement/arrest in FIR 119/96 to the department and he also did not mention any reason in his self defence statement for not informing/intimating the department. Accordingly, the enquiry officer found that the aforesaid act of the applicant was in violation of the rules. Consequently, the enquiry officer came to the conclusion that the charge against the applicant was proved.
4. The disciplinary authority tentatively agreeing with the aforesaid findings of the enquiry officer, furnished a copy of the enquiry report to the applicant to enable him to make his representation against the findings, if any. He submitted his written statement on 18.1.2010 stating that enquiry officer did not consider his submissions. He has also submitted that the enquiry officer had proved the charge of willful absence for a period of 17 days and 15 minutes without any authentic exhibited record as none of the PWs has supported the authenticity of DD entries. According to him, the Rajasthan Police has implicated him in a false and frivolous case on 26.6.96 but he was acquitted by the Court later on. Therefore, the findings of the enquiry officer that he had willfully absented from duty and left the police station without prior permission, is wrong. He has also submitted that none of the prosecution witnesses has supported the allegation made against him or any relevant documents have been produced during the course of enquiry. After considering the Enquiry Officers report, the applicants written statement and hearing him in O.R. on 10.1.2010, the disciplinary authority agreed with the findings of the enquiry officer that the charge levelled against him was proved and held that he should not be let off without punishment. Accordingly, disciplinary authority has imposed the punishment of forfeiture of two years approved service on the applicant permanently entailing proportionate reduction in his pay. His suspension period from 27.6.96 to 11.5.2008 was also decided as not spent on duty for all intents and purposes.
5. The applicant has made the Annexure A-8 appeal dated 5.3.2010. According to him, the disciplinary authoritys order was arbitrary and it was not based on truth or any evidence. Neither Enquiry Officer nor the disciplinary authority has considered his defence statement. His further contention was that during the enquiry proceedings none of the original DD entries were produced by any prosecution witness or the copy of the DD entries were signed by any officer. Still, the enquiry officer has held that the charge for willful absence for a period of 17 days and 15 hours was proved. He has also stated that on perusal of the statement of MHC-R PS Bhajanpura who was cited and examined as PW during the course of the enquiry would show that he has totally denied the authenticity of the DD entries according to which his absence from duty was lodged on 28.6.96 at 11 p.m. whereas he was taken by the Rajasthan Police on 26.6.96 to implicate him in false and frivolous case in which he has been acquitted by the Court. So there was no question of any willful absence from duty on his part. Further, despite his repeated requests, the Enquiry Officer did not supply the relevant documents to him. Therefore, the conclusion arrived at by the Enquiry Officer was false and perverse though he held that the charge levelled against him was proved.
6. The appellate authority, vide its Annexure A-4 order dated 4.8.2010, considered the aforesaid pleadings of the applicant and held that the enquiry officer has conducted the departmental enquiry against the applicant within the ambit of the rules and the charges have been proved on the basis of the documentary evidence. It has also not accepted the plea of the applicant that PW-2 MHC (R) of PS Bhajanpura denied the authenticity of the DD entries because PW-1 SI Jagbir Singh had clearly stated that the absentee notice dated 22.7.96 was issued on the basis of the DD entry No.77-B dated 28.6.96. On the other hand, the said PW has identified the above absentee notice exhibited in the departmental enquiry file. Moreover, the written request of the applicant dated 13.5.98 clearly indicates that he proceeded to Rajasthan in a private car along with four other persons without any leave from the competent authority in order to apprehend one Ishwar who was suspected to have stolen money belonging to one of his close relative. Later on, applicant was arrested by the Police PS Dhuni Distt. Tonk Rajasthan in the aforesaid case and sent to judicial custody on 27.6.96. Neither the applicant nor his close relatives have informed the department about his involvement and his arrest in the criminal case. Hence he was marked absent vide DD entry No.77-B dated 28.6.96 and later on he resumed his duty vide order dated 16.7.96.
7. Applicant has challenged the aforesaid enquiry officers report and orders of the disciplinary authority and appellate authority on various grounds. According to him, the respondents failed to appreciate that even though he was prosecuted in criminal case, yet he was acquitted and, therefore, he cannot be subjected to any departmental enquiry on the same ground. He has also submitted that in terms of the judgment of the Delhi High Court in Mohan Lal Vs. Union of India, 1982 (1) SLR 573, acquittal of a Govt. servant on benefit of doubt is complete acquittal on merits and consequentially the concerned Govt. servant shall be entitled to full pay and allowances. In this regard, he has also relied upon the order of this Tribunal OA-2640/2002 Vijender Singh Vs. Commissioner of Police, decided on 24.7.2003, the operative part of order is as under:
8. Perusal of the judgement of the learned Chief Judicial Magistrate certainly reveals that it is not on a technical ground. The court had come to the conclusion that relevant evidence had not been produced and charge is not proved. The decision was arrived at on the basis of evidence on record. Whether the charge is substantiated or insufficient is not the question. Once the evidence had been allowed to be produced and is not forthcoming, it would be an acquittal rather than an acquittal on technical ground. In normal parlance, it would be failure on technical grounds if unauthorized person files the complaint or the petition fails before a court, or it fails on a technical aspect says there is no proper sanction, the report has not been lodged by competent authority or any such procedural flaw which may prompt the court to put an end to the prosecution case. Prosecution or the State may still be in a position to come back to the court after removing the said technicality. Position herein is totally different. As already referred to above and re-mentioned at the risk of repetition, the learned court took note of the evidence on record and for want of evidence, held that the charge is not proved. This is not an acquittal on technical ground. We have thus no hesitation in rejecting this contention of the respondents.
9. It was not disputed that after the acquittal of the applicant, the certificates of the applicant have since been restored. Therefore he certainly has a right to insist that his claim should be considered to appoint him as a Constable bereft of the abovesaid stand.
8. He has also contended that the disciplinary authority has initiated the departmental enquiry proceedings against him, vide order dated 26.5.2009, in violation of Rule 12 of Delhi Police (Punishment & Appeal) Rules, 1980 since his case did not fall in any of the exceptions mentioned in Clause 5 of Rule 12. Therefore there was total non-application of mind by the Disciplinary Authority. In this regard, the learned counsel for the applicant has relied upon the order of a Coordinate Bench of this Tribunal in OA-33/2008 Ram Phool Meena Vs. Commissioner of Police & ors. decided on 2.6.2008 where it has been held as under:
12. Both on law and facts, we are of the view that there is no justification for proceeding departmentally against the applicant. The concerned authority, i.e., Deputy Commissioner of Police, while passing the impugned order, it may be noted, did not even consider either the applicability of Rule 12 of the Rules of 1980 or the manner in which the applicant was acquitted. It is rather strange to note that even the factum of acquittal of the applicant has not been mentioned. We were at one stage thinking of quashing the impugned order with direction to the concerned authority to examine the issue of departmentally proceeding against the applicant keeping in view the provisions of Rule 12 and the manner in which the applicant was acquitted, but once, it is a written stand of the respondents that acquittal on benefit of doubt would be termed as if acquittal is on technical grounds, it would have been an exercise in futility to remit the case to the concerned authority for taking decision as mentioned above.
9. He has also submitted that if the charges in the departmental proceedings were based on the allegations which are different from those in criminal case, then those allegations relate back to the year 1996 and they have became stale when the disciplinary proceedings were initiated on 26.9.2009. Therefore, due to the unexplained delay of 13 years in issuing the charges, they are liable to be quashed.
10. His further contention is that the respondents have failed to appreciate that if on the date of acquittal, if no enquiry was pending, then the suspension which was due to the pendency of criminal case, was to be treated as period spent on duty for all intents and purposes with full pay and allowances. In other words, as the order of suspension was due to pendency of criminal case in which he was acquitted and thereafter he was reinstated in service, he is entitled to full pay and allowances for the period from the date of suspension to the date of reinstatement and to treat the period of suspension as period spent on duty and the disciplinary authority has no jurisdiction/power to decide the same in the departmental enquiry initiated vide order dated 26.5.2009 as he has already been acquitted on 18.8.2008. Further, FR 54 could not have been invoked by the authorities to deny him back wages during the suspension period as the suspension was due to the pendency of the criminal case. In this regard he has relied upon the judgment of this Tribunal in the case of D.R.Patel Vs. Union of India, 2003 (2) ATJ 374 where it was held as under:
6. There is no dispute that the applicant was placed under suspension and remained under suspension pending criminal proceedings between 25.8.91 to 21.12.93. It is also an uncontraverted fact the applicant has come to be acquitted by the Addl. Chief Metropolitan Magistrate, Girgaum, Mumbai vide orders dated 31.3.2001. Pursuant to the acquittal of the applicant, his suspension was revoked vide order dated 15.12.96. The only question, therefore, is whether the suspension period could have been treated as a period spent on duty by the applicant or not.
7. It is not dispute that no departmental proceedings have been initiated against the applicant and that no disciplinary action except that of the criminal case had been taken against the applicant. When the applicant has come to be acquitted by the Criminal Court it can be seen that there is no proceedings pending against the applicant. Once the applicant has been exonerated of the charges leveled against him, it can hardly be said, in the absence of any other proceedings pending against him, that his suspension was justified. The suspension order itself makes it quite abundantly clear that he was placed under deemed suspension as he was detained in police custody with effect from 9.8.91 to 16.8.91. When suspension was only because of his being placed under police custody and in the criminal case he has been acquitted, it cannot be argued that his suspension was justified. When the suspension itself is not justified, it is not open to the competent authority to hold that the period of suspension cannot be treated as a period spent on duty. The reasoning adopted by the competent authority that he was prosecuted in the Court of law and he was acquitted in the said prosecution giving him benefit of doubt and therefore, his suspension was fully justified and therefore, he is not entitled to the full pay and allowances for the period he remained under suspension is clearly fallacious. When the order of the competent authority is based on no tenable ground the same deserves to be quashed and set aside. At this juncture we may refer to the decisions cited by Mr. K.C. Bhatt, learned advocate for the applicant in the case of Jagmohan Lal Vs. State of Punjab AIR 1967 Punjab 422. It is held that whether a person is acquitted with benefit of doubt or for other reasons, the re-suit is that his guilt is not proved. Criminal Courts are not concerned to find that innocence of an accused but only to see whether the guilt of accused has been proved beyond reasonable doubt. The intention of Rule 7.5 therefore is that when a criminal charge against a Government servant fails in a Court of Law he should be deemed to be acquitted. Thus a Government servant acquitted though with benefit of doubt, is entitled to full pay and allowances during suspension period.
Same view is expressed by this Tribunal in the case of K.A. Kharadi Vs. Union of India in OA 208/2000 as well as in the case of Harjivan G. Davda Vs. Union of India in OA 388/99. In both these cases the applicant therein were suspended on account of criminal proceedings going on against them and ultimately when they were acquitted even by giving benefit of doubt the Tribunal had held that they were entitled to full pay and allowances during the suspension period. The Tribunal in that case also relied on the case of Balappachan Vs. State of Mysore, 1975 AIR 28 wherein it was held that once a suspended Government servant is acquitted, whether such acquittal is on account of lack of evidence, or on account of any defect in the procedure in the trial, or on account of the court extending the benefit of doubt so long as such acquittal stands, the presumption of innocence of the accused, should be given full effect and he must also be regarded as being acquitted of the blame flowing from any of the acts which formed the subject matter of the charge. In such a case the Government servant concerned will be entitled to his full emoluments during the period of his suspension.
These observations have direct application to the fact of the instant case. We have no hesitation in concluding that the suspension not being justified, it was not open on the part of the competent authority to decline to treat the period of suspension as period spent on duty. We, therefore, allow this OA and quash and set aside the impugned order dated 17.7.2002 of the Director Postal Services and the respondents are directed to treat the period of suspension of the applicant i.e. the period from 25.8.91 to 21.12.93 as a period spent on duty with full pay and allowances during the said period.
11. Lastly, he has submitted that where an employee has been arrested and information regarding the arrest has already been received by the department and on that basis he was placed under suspension also before his release, the charge of non-information regarding his arrest has no merit and, therefore, it has been issued without application of mind.
12. The respondents in their reply have denied all the contentions of the applicant. They have reiterated the charge against him and further submitted that he was acquitted in the criminal case only on the ground that the prosecution failed to prove the charge against him as there was suspicion about the place of his arrest. On the other hand, the departmental enquiry was initiated against the him on the allegation that on 26.06.1996 he proceeded to Rajasthan along with four other persons in a private Ambassador car No.DL-4CC-8788 without taking any permission or leave in order to apprehend one Ishwar Singh whom they suspected to be in possession of stolen money belonging one of his close relative. He was marked absent vode DD No.77B dt. 28.06.1996, PS Bhajanpura. Only from the letter of SP/Tonk (Ex.PW-4/B) dated 10.07.1996, they came to know that he was involved/arrested in case FIR No.119/1996 U/s 365/323 IPC PS Dooni Distt. Tonk of PS Tonk (Rajasthan). Therefore, he was placed under suspension. He himself has not given any information regarding his involvement/arrest to the department. They have also stated that SI Jagbir Singh NO. D-862/NE, SIP/N.East Distt. (PW-1) has categorically stated that the absentee notice vide No.9574-78/SIP/NE dt. 22.07.1996 was issued to him on the basis of DD entry No.77-B dt. 28.06.1996, PS Bhajanpura, Delhi and he also identified the said absentee notice appended in the DE file which was marked as Ex.PW-1A/A.
13. We have heard the learned counsel for the applicant and the respondents. The charge against the Applicant is not the same as those in the criminal case in which he was later acquitted though there are references about it in the Summary of Allegations served upon him. Therefore, the judgments/orders in Mohan Lal (supra), Vijender Singh (supra), Ram Phool Meena (supra) have no relevance in this case, so far as the contention of the applicant that the respondents could not have initiated the departmental proceedings after he was acquitted in the criminal case. On the other hand, the charge is all about his unauthorized absence from duty from 26.6.96 to 16.7.96. But the fact of the matter is that for the aforesaid charge, the disciplinary authority has initiated the departmental enquiry only on 26.5.2009, i.e., after a delay of nearly 13 years. Then the logical question that would arise is as to why there was such an inordinate delay in initiating the departmental proceedings against the applicant. The respondents have not given any explanation whatsoever for the same.
14. The Apex Court in the case of State of Madhya Pradesh v. Bani Singh & another, 1990 Supp SCC 738, State of A.P. Vs. N.Radhakishnan, (1998) 4 SCC 154, P.V. Mahadevan v. MD. T N Housing Board, 2005 SCC (L&S) 861 and M.V.Bijlani Vs. Union of India, (2006) 5 SCC 88 have considered the issue of delay in initiating the departmental proceedings in detail and held that it cannot prejudice to the delinquent officials. The relevant part of those judgments is as under:-
(i) State of M.P. v. Bani Singh, 1990 (Supp) SCC 738, it is unreasonable to think that they would have taken more than 12 years to initiate the disciplinary proceedings as stated by the Tribunal. There is no satisfactory explanation for the inordinate delay in issuing the charge memo and we are also of the view that it will be unfair to permit the departmental enquiry to be proceeded with at this stage.
(ii) P.V. Mahadevan v. MD, T.N. Housing Board,(2005) 6 SCC 636 There is also no acceptable explanation on the side of the respondent explaining the inordinate delay in initiating departmental disciplinary proceedings.
(iii) State of A.P. v. N. Radhakishan, (1998) 4 SCC 154 19. It is not possible to lay down any predetermined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated each case has to be examined on the facts and circumstances in that case. The essence of the matter is that the court has to take into consideration all the relevant factors and to balance and weigh them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when the delay is abnormal and there is no explanation for the delay. The delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he is not made to undergo mental agony and also monetary loss when these are unnecessarily prolonged without any fault on his part in delaying the proceedings. In considering whether the delay has vitiated the disciplinary proceedings the court has to consider the nature of charge, its complexity and on what account the delay has occurred. If the delay is unexplained prejudice to the delinquent employee is writ large on the face of it. It could also be seen as to how much the disciplinary authority is serious in pursuing the charges against its employee. It is the basic principle of administrative justice that an officer entrusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. If he deviates from this path he is to suffer a penalty prescribed. Normally, disciplinary proceedings should be allowed to take their course as per relevant rules but then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is to blame for the delay or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately, the court is to balance these two diverse considerations.
(iv) M.V. Bijlani v. Union of India,(2006) 5 SCC 88, The Tribunal as also the High Court failed to take into consideration that the disciplinary proceedings were initiated after six years and they continued for a period of seven years and, thus, initiation of the disciplinary proceedings as also continuance thereof after such a long time evidently prejudiced the delinquent officer.
15. The other issue which required to be considered is regarding the order of the disciplinary authority as upheld by the Appellate Authority treating the period of suspension from 27.6.1996 to 11.5.2008 as period not spent on duty for all intents and purposes. Admittedly, the applicant was placed under suspension during the aforesaid period after his arrest in the criminal case initiated against him vide FIR 119/96 u/s 365/323 IPC P.S. Duni District, Tonk Rajasthan. The said case was finally decided on 18.8.2008 and the applicant was acquitted. During the pendency of the said case itself the applicant was reinstated in service w.e.f. 12.5.2008. There were no departmental cases initiated against him either on 12.5.2008 or on 18.8.2008. In fact the present departmental case was ordered against the applicant only on 26.5.2009. Therefore, linking the aforesaid suspension with the present departmental proceedings itself is wrong. As held by the Apex Court in Mohan Lals case (supra) there are no provisions of law whereby a Govt. servant can be denied the benefit of duty and full pay when such a government servant is suspended due to the pendency of a criminal case in which he is acquitted. Therefore, the respondents ought to have decided about treating his suspension period immediately after his acquittal in the criminal case as he has already been reinstated in service by that time. In any case, as held by this Tribunal in D.R.Patels case, in view of the facts and circumstances of this case, it was not open to the disciplinary authority to decline to treat the period of suspension of the applicant as period spent on duty.
16. Resultantly, the impugned orders, mentioned in para 1 of this Order are quashed and set aside. The two years service which has been forfeited shall be restored to the applicant with all consequential benefits. The period of his suspension from 27.6.96 to 11.5.2008 shall also be treated as period spent on duty for all intents and purposes with all consequential benefits including arrears of pay and allowances. The respondents shall implement the aforesaid directions within two months from the date of receipt of a copy of this order. No costs.
( Dr. Veena Chhotray ) ( George Paracken )
Member (A) Member (J)
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