Central Administrative Tribunal - Delhi
Ajit Singh vs Comm. Of Police on 9 May, 2024
1
OA No. 380/2020
Item No.8/C-II
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
OA No. 380/2020
This the 9th day of May, 2024
Hon'ble Mr. R.N. Singh, Member (J)
Hon'ble Dr. Anand S. Khati, Member (A)
Ajit Singh, Group 'C'
PIS No. 28030309
Constable of Delhi Police
Aged about 37 years
S/o Sh. Jatan Singh
R/o VPO : Uday Ram Pur Nangla,
Distt: Ghaziabad, UP
... Applicant
(By Advocate : Mr. Anil Singal)
Versus
1. Delhi Police
Through Commissioner of Police,
PHQ, IP Estate, New Delhi
2. Addl. Commissioner of Police
Operation & Modernization,
PHQ, IP Estate, New Delhi
3. DCP (PCR)
PHQ, IP Estate, New Delhi.
... Respondents
(By Advocate : Mr. Amit Yadav)
2
OA No. 380/2020
Item No.8/C-II
O R D E R (ORAL)
Hon'ble Mr. R.N. Singh, Member (J) :
By way of the present OA, the applicant has challenged the order dated 05.07.2017 (Annexure A-1), vide which the departmental proceedings against him, earlier kept in abeyance by the respondents, were initiated. The applicant has also challenged the disagreement note dated 12.01.2018 (Annexure A-2), vide which the Disciplinary Authority disagreed with the findings of the Inquiry Officer (IO) in the departmental proceedings conducted against the applicant. Under challenge is also the order dated 27.03.2018 (Annexure A-3), vide which the Disciplinary Authority has awarded the punishment of forfeiture of the applicant's entire service permanently and bringing him at his initial stage of appointment in the rank of Constable, entailing proportionate reduction in pay as well as his suspension period from 23.07.2004 to 05.01.2005, further period of termination from 06.01.2005 to 22.09.2011 and period of dismissal from 01.03.2016 to 29.06.2017 were decided as period 'not spent on duty' for all intents and purposes and the same was made not to be regularized in any manner. The applicant has further challenged the Appellate Order dated 22.03.2019 (Annexure A-4), vide 3 OA No. 380/2020 Item No.8/C-II which the applicant's statutory appeal has been rejected by the Appellate Authority.
2. The applicant, in the present OA, has prayed for the following reliefs:-
"1. To quash and set aside impugned Order reopening DE dt. 5.7.2017, Disagreement Note dt. 12.1.2018, Order of Punishment dt. 27.3.2018 and Appellate Order dt. 22.3.2019.
2. To direct the respondents to restore to the applicant his original service and pay with all consequential benefits including promotion/seniority and arrears of pay.
3. To award costs in favor of the applicant and pass nay order or orders which this Hon‟ble Tribunal may deem just & equitable in the facts & circumstances of the case."
3. In response to notice, the respondents have filed counter reply wherein they have disputed the claim of the applicant and have also prayed for dismissal of the OA with cost.
4. With the consent of the learned counsels for the parties, the matter has been taken up for final disposal.
5. We have heard the learned counsels for the parties and with their assistance, we have also perused the pleadings available on record.
6. The undisputed facts are that Departmental Enquiry (DE) was initiated against the applicant, who was working as a Constable, under the provisions of Delhi Police 4 OA No. 380/2020 Item No.8/C-II (Punishment and Appeal) Rules, 1980 vide an order dated 27.07.2012 on the allegations that the case FIR No. 185/2004 dated 30.04.2004 under Sections 420/468/471 IPC with PS Mukherjee Nagar, Delhi was registered against him on the complaint of one Mr. Anand Mohan, the then DCP, Delhi Police. The DE was entrusted to IO appointed in the matter for conducting the inquiry on day to day basis and to submit the findings expeditiously. The IO prepared the summary of allegations, list of witnesses, list of documents and served upon the delinquent Constable on 10.09.2012. The learned court of Ms. Shunali Gupta, ACMM, Rohini Courts, Delhi passed the judgment dated 22.05.2015 in the aforesaid case FIR, vide which the applicant was convicted for offenses under Section 420/468/471 and order on sentence was passed on 25.06.2015. Aggrieved by the judgment of conviction and sentence in the said case FIR, the applicant preferred a criminal appeal and the same was allowed vide judgement dated 05.01.2016 (Annexure A-5). The Disciplinary Authority on consideration found that the applicant has committed the offence and act of misconduct and therefore, he found his retention in Delhi Police as to be not warranted in the public interest. Accordingly, the Disciplinary Authority by invoking the jurisdiction under 5 OA No. 380/2020 Item No.8/C-II Rule 11 of the Delhi Police (Punishment & Appeal) Rules, 2011 dismissed the applicant from service with immediate effect vide order dated 01.03.2016. The DE initiated against the applicant was kept in abeyance by the respondents vide order dated 16.03.2016.
7. Aggrieved by the aforesaid impugned disciplinary order, the applicant further preferred the statutory appeal and the said appeal was allowed by the Appellate Authority vide order dated 30.06.2017 and the applicant was re- instated in service. However, as the earlier disciplinary proceeding was kept in abeyance, the respondents passed the order dated 05.07.2017 for initiation of the inquiry on day to day basis and to submit the report. The IO submitted his report dated 14.12.2017, whereby he concluded as under:-
"Conclusion In view of the above discussion as well as material evidences placed on record, the charge served upon Ct. Ajit Singh No. 430/Comn. (now 7280/PCR) is proved to the extent that a case vide FIR No. 185/04 u/s 420/468/4711PC PS Mukhrejee Nagar, Delhi was registered against him and he was arrested in the said case, which is violation of Sec-3 of CCS Conduct Rule However it is pertinent to mention here that the judgment dated 22.05.2015 and order on sentence dated 25.06.2015 pass by Ld. Court of Ms. Shunali Gupta ACMM, North. He was sentenced to undergo SI for two years for offence punishable under section 420 IPC and SI one year each for the other 02 offences. Sentences were ordered to run concurrently. He was further sentences to cumulative fine of Rs. 5000/-ID SI one month.6 OA No. 380/2020
Item No.8/C-II The delinquent constable Ajit Singh filed an appeal in the session court against the judgment dated 22.05.2015. In the appeal due to lack of evidences during trial in the Court. The Hon'ble Court of M.R.Sethi ASJ, Spl. Judge (NDPS), North, Rohini Courts, Delhi had acquitted the delinquent Ct. Ajit Singh No. 430/Comn. (now 7280/PCR) on 05.01.2016 granting him benefit of doubt in this case. The impugned judgment and order on sentence are set aside and accused order to be acquitted in this case.
Hence keeping in view the facts and circumstances mentioned above as the possibility of alteration in date of registration in employment exchange card by changing the date to 06.03.2002 to make himself eligible for the post could not be ruled out.
Submitted for kind perusal please."
8. The Disciplinary Authority issued the impugned disagreement note and the applicant submitted his reply. The Disciplinary Authority has passed the impugned order dated 27.03.2018. The applicant submitted his statutory appeal and the Appellate Authority has rejected it vide the impugned order dated 22.03.2019.
9. Mr. Anil Singal, learned counsel for the applicant has argued that:-
(i) Once the applicant has been acquitted in the relevant case FIR, which has been the basis for initiation of DE, in view of the provisions of Rule 12 of the Delhi Police (Punishment & Appeal) Rules, it was incumbent upon the respondents to consider as to whether the applicant is required to be punished, however, the respondents while 7 OA No. 380/2020 Item No.8/C-II passing the impugned order dated 05.07.2017 to re-open the inquiry which was kept in abeyance earlier has not even considered the provisions of the aforesaid Rule 12.
(ii) The Disciplinary Authority while issuing the impugned disagreement note dated 12.01.2018 and/or the impugned order of penalty dated 27.03.2018 also has not considered the provisions of the said Rule 12 of the Delhi Police (Punishement & Appeal) Rules, which ought to have been considered by him.
(iii) The Appellate Authority also didn't take into consideration the provisions of Rule 12, while passing the impugned penalty order dated 27.03.2018.
(iv) Non-consideration of the provisions of the relevant rules, i.e., Rule 12 of the Delhi Police (Punishment & Appeal) Rules while passing the impugned orders was result of non-application of mind.
10. Learned counsel for the applicant, in support of his submissions, has placed reliance upon the Order/judgement of this Tribunal dated 02.02.2024 in OA No. 3656/2016 titled Satyapal Singh Yadav vs. GNCTD & Ors..
8OA No. 380/2020 Item No.8/C-II
11. On the other hand, Mr. Amit Yadav, learned counsel, by referring to the assertions made by the respondents in the counter reply as well as by inviting our attention to the impugned orders has argued that the impugned orders have been passed by the Competent Authority after taking into consideration the relevant rules, the seriousness of the allegations and findings returned by the IO. He has argued that while passing the impugned orders, the relevant rules and instructions have been followed by the Competent Authority and principle of natural justice has duly been complied. He further submits that it is always for the Competent Authority amongst the respondents to decide the quantum of the punishment and this Tribunal, while exercising the jurisdiction of judicial review, is precluded from appreciating or re-appreciating the order passed by the respondents. The Tribunal and courts are expected to examine as to whether the relevant rules are followed or not, principle of natural justice has been complied or not and the process of arriving at the decision is right or not and not the decision. He has further argued that the applicant was not exonerated of the charges leveled against him in the said FIR. The learned Appellate Court, while acquitting him in the criminal appeal, has given only a benefit of doubt to the applicant, learned counsel argues. 9 OA No. 380/2020 Item No.8/C-II
12. We have considered the submissions made by learned counsels for the parties as noted herein above.
13. The factual matrix is not disputed. The Rule 12 of the Delhi Police (Punishment & Appeal) Rules and the relevant judgment on the subject has extensively been considered by a coordinate bench of this Tribunal consisting one of us [Hon'ble Mr. R.N. Singh, Member (J)] in the case of Satyapal Singh Yadav (supra), of which para 27 to 39 is reproduced as under:-
"27. The applicant, on the other hand, has relied upon a set of judgments as follows:
In the matter of Commissioner of Police, Delhi vs. H.C.Laxmi Chand vide WP(C) No.22584 /2005 decided on 09.09.2011 in the context of acquittal on technical grounds, it was held:
"34. In the order dated 17th May, 2001 except stating that the acquittal is based on technical grounds, no reason had been given as to why the acquittal is allegedly based on the technical ground. The tribunal while setting aside the order passed by the petitioner reopening the disciplinary proceedings relying on the exception in Rule 12 had referred to a decision of another Coordinate Bench in OA No.2640/2002, titled as „Vijender Singh v. Commissioner of Police‟ decided on 24th July, 2003 where it was held that once evidence had been allowed to be produced and the evidence adduced is not sufficient, then in such circumstances, the acquittal of the accused would be an acquittal and not an acquittal on technical ground. Citing some of the instances of technical acquittal it was held that it would be acquittal on technical grounds, if an unauthorized person files a complaint or the petition fails before a court or it fails on technical aspect e.g. there is no proper sanction, or the report has not been lodged by the competent authority, or there is such other procedural flaw which may prompt the criminal Court to put an end to the prosecution case. Then in such circumstances acquittal will be a technical acquittal. However, in such cases of technical acquittal the prosecution may still be in a position to come back to the court after rectifying the technical flaw. But if the acquittal is after appreciation of evidence adduced against the accused, the prosecution or 10 OA No. 380/2020 Item No.8/C-II State cannot go back and initiate another criminal case against the accused or bring more evidence on the same charges. The learned counsel for the petitioner has not been able to demonstrate in the facts and circumstances that the acquittal of the respondent is on technical grounds, even though the criminal court had perused the evidence of all the witnesses and did not find sufficient evidence to conclude on the guilt of the respondent. The Court did not think it appropriate to rely on the testimony of the PW9 Narain Singh, one of the witnesses of the alleged recovery, in view of the other witnesses of recovery becoming hostile and not supporting the prosecution version. The prosecution did not even challenge the order of the acquittal of the respondent in appeal. No precedent has also been cited on behalf of the petitioner to establish that in such circumstances as in the case of the respondent, acquittal can be construed as a technical acquittal.
35. Consequently, the inferences on behalf of the petitioner in its order dated 17th May, 2001 invoking sub section (a) of Rule 12 of the Delhi Police (Punishment & Appeal) Rules, 1980 cannot be sustained and it cannot be held that the acquittal of the respondent was on technical grounds so as to give jurisdiction to the petitioner to re-
open the departmental proceedings which were kept in abeyance on account of the pendency of the criminal case against the respondent on the same charges. In the matter of Govt. of NCT of Delhi & Ors. vs. Nihal Singh & Ors., vide WP(C) No.186/2021 decided on 24.07.2023 in defining the scope of Rule 12 of the Rules of 1980, the High Court held as under:
"20. Insofar as the reliance placed by Mrs. Avnish Ahlawat on Rule 12 of the Rules of 1980 is concerned, it is to be seen whether the acquittal of the respondents was on a technical ground or it was an honourable acquittal. In this regard, it is necessary to highlight the following findings of the criminal court acquitting the respondents herein:-
"15. It is .... illegible.....from one above discussion that prosecution has failed to produce any incriminating evidence to prove the commission of offence punishable under Section 223 of Indian Penal Code beyond .... illegible.. used beyond reasonable doubt.
16. In view of the above discussion, by extending benefit of doubt, the accused are hereby acquitted of the charge leveled against them under Section 223 of Indian Penal code. The accused are on bail. Therefore, bail bond stand discharged. File be consigned to record room after due compliance."11 OA No. 380/2020
Item No.8/C-II
21. It is clearly discernable from the aforesaid findings of the criminal court that the prosecution had failed to produce any incriminating evidence to prove the commission of offence punishable under Section 223 of the Indian Penal Code, 1860, beyond reasonable doubt.
22. Having said that it is necessary at this stage to highlight the judgment of the Supreme Court in the case of Deputy Inspector General of Police and Anr. v. S. Samuthiram, (2013) 1 SCC 598, wherein the Supreme Court, had the occasion to decipher the Signature Not Verified Digitally Signed Signing Date:24.07.2023 16:56:11 expression 'honourable acquittal' in the following manner:
"24. The meaning of the expression „honourable acquittal‟ came up for consideration before this Court in RBI v. Bhopal Singh Panchal [(1994) 1 SCC 541 : 1994 SCC (L&S) 594 : (1994) 26 ATC 619] . In that case, this Court has considered the impact of Regulation 46(4) dealing with honourable acquittal by a criminal court on the disciplinary proceedings. In that context, this Court held that the mere acquittal does not entitle an employee to reinstatement in service, the acquittal, it was held, has to be honourable. The expressions 'honourable acquittal', 'acquitted of blame', 'fully exonerated' are unknown to the Code of Criminal Procedure or the Penal Code, which are coined by judicial pronouncements. It is difficult to define precisely what is meant by the expression 'honourably acquitted'. When the accused is acquitted after full consideration of prosecution evidence and that the prosecution had miserably failed to prove the charges levelled against the accused, it can possibly be said that the accused was honourably acquitted."
(emphasis supplied)
23. From the above, it is noted that the Supreme Court, clearly held that when an accused is acquitted after full consideration of prosecution evidence and that the prosecution had miserably failed to prove the charges levelled against the accused, it can possibly be said that the accused was honourably acquitted. In the present case also, there is a clear conclusion of the criminal court that the prosecution has failed to produce any incriminating evidence to prove the commission of offence punishable under Section 223 of the Indian Penal Code, 1860, against the respondents herein.
Reliance is also placed in the matter of George N.S. vs. Commissioner of Police, vide WP(C) No.4941/2000 decided on 12.08.2011 to clarify as to what is meant by acquittal on technical grounds. Relevant paras of the said judgment read as follows:
12OA No. 380/2020
Item No.8/C-II "11. Thus, it would be essential to see as to whether the acquittal recorded by learned MM was on technical ground or not. It may be reiterated that the petitioner was charge-
sheeted vide FIR No.351 in the year 1991. The prosecution has failed to examine before the criminal court not only the witnesses Dr. Rajeev Sharma & Ms. Licy, but also the other witnesses who were police officials. The court repeatedly adjourned the case for the prosecution evidence, but no efforts were seen to have been made by the prosecution in leading evidence. Ms. Licy, whose examination-in-chief was recorded, was never produced for her cross examination. Even the case property, the plain paper notes, were also never produced. Left to this situation, the Court had no option, but to close the evidence and record acquittal stating that the prosecution has not been able to prove its case beyond reasonable doubt. The recording of acquittal being clear, it cannot be said to be based on technical ground.
12. The acquittal on account of prosecution failing to prove its case beyond reasonable doubt or on account of lack of evidence or no evidence cannot be termed as acquittal on technical ground. Such grounds i.e. technical ground, would be, to illustrate a few, limitation which has now been prescribed by recent amendment in Cr.P.C or trial without obtaining sanction as required under Section 197 Cr.P.C in cases where it is required and the trial being held without obtaining such sanction. If the legislature intended that acquittal on account of benefit of doubt or prosecution failing to prove a case beyond reasonable doubt etc. were not to be a bar in the departmental proceedings, it would have so specifically provided as Exception in Rule."
28. Relying on the above judgments, the learned counsel for the applicant has argued that this is a case of clean and honourable acquittal and just because the witnesses turned hostile it cannot be said that they were won over or it involved failure on technical grounds. It is also contended that the acquittal of the delinquent is not on technical ground. In the instant case, the evidence was allowed to be produced but the evidence adduced was not sufficient and it was a case of acquittal rather than acquittal on technical ground. Elaborating as to what is the acquittal „on technical grounds‟, it has been argued that the scope includes unauthorised persons filing a complaint, no proper sanction, or some procedural flaw which may prompt the criminal Court to put an end to the prosecution case. In such cases of technical acquittal, the prosecution can always come back to the court after rectifying the technical flaw. In this case, the reasons for the acquittal are entirely different and it does not come within the purview of technical failure. It is also brought that the acquittal on account of prosecution failing to prove his case beyond reasonable doubt or on account of lack of evidence or no evidence, cannot be termed as acquittal on technical ground. It is averred that the expressions "honourable acquittal‟s 13 OA No. 380/2020 Item No.8/C-II not known to the Code of Criminal Procedure or the Penal Code, which have been coined by judicial pronouncements. When the accused is acquitted after full consideration of prosecution evidence, it can possibly be said that the accused was honourably acquitted.
29. We have considered these submissions, especially claims made through the judgments cited by either side and considered whether the case falls within the scope of Rule 12.
30. The undisputed fact is that the delinquent was found guilty in the departmental proceedings conducted but he was tried and acquitted by a criminal court and thumb rule is that he shall not be punished departmentally on the same charge or on a different charge upon the evidence cited in the criminal case, whether actually led or not unless the criminal charge has failed on technical grounds, or in the opinion of the court, or in the opinion of the Deputy Commissioner of Police, the prosecution witnesses have been won over. Though the definition of failure on technical ground may not be precise and even if we accept that the acquittal in the criminal case was not an honourable acquittal even though the witnesses had turned hostile, the fact remains that none of the witnesses could identify the accused, failing which the witnesses were cross-examined by the APP but nothing material came out in his crossexamination. Therefore, the competent court held that in the facts and circumstances the case of prosecution is not supported by the key witnesses i.e. the victim, her friend and neighbor as they had deposed nothing incriminating against the applicant and complainant herself denied the presence of the applicant at the place of incident. Upon testimony of the key witnesses offence was not proved and it was held by the competent court that accused cannot be held guilty.
31. To our mind, such acquittal based on lack of evidence does not qualify to be called „an acquittal on technical ground‟. We rely on the judgment in Commissioner of Police, Delhi vs. H.C.Laxmi Chand (supra) wherein the Hon'ble Delhi High Court held as follows:
"34........Citing some of the instances of technical acquittal it was held that it would be acquittal on technical grounds, if an unauthorized person files a complaint or the petition fails before a court or it fails on technical aspect e.g. there is no proper sanction, or the report has not been lodged by the competent authority, or there is such other procedural flaw which may prompt the criminal Court to put an end to the prosecution case. Then in such circumstances acquittal will be a technical acquittal. However, in such cases of technical acquittal the prosecution may still be in a position to come back to the court after rectifying the technical flaw. But if the acquittal is after appreciation of evidence adduced against the accused, the prosecution or State cannot go back and initiate another criminal case against the accused or bring more evidence on the same charges. The learned counsel 14 OA No. 380/2020 Item No.8/C-II for the petitioner has not been able to demonstrate in the facts and circumstances that the acquittal of the respondent is on technical grounds, even though the criminal court had perused the evidence of all the witnesses and did not find sufficient evidence to conclude on the guilt of the respondent. The Court did not think it appropriate to rely on the testimony of the PW9 Narain Singh, one of the witnesses of the alleged recovery, in view of the other witnesses of recovery becoming hostile and not supporting the prosecution version. The prosecution did not even challenge the order of the acquittal of the respondent in appeal. No precedent has also been cited on behalf of the petitioner to establish that in such circumstances as in the case of the respondent, acquittal can be construed as a technical acquittal. 35. Consequently, the inferences on behalf of the petitioner in its order dated 17th May, 2001 invoking sub section (a) of Rule 12 of the Delhi Police (Punishment & Appeal) Rules, 1980 cannot be sustained and it cannot be held that the acquittal of the respondent was on technical grounds so as to give jurisdiction to the petitioner to re-open the departmental proceedings which were kept in abeyance on account of the pendency of the criminal case against the respondent on the same charges."
32. As such, it does not attract the provisions of Rule 12 (a). Also the competent court has nowhere opined that there is any indication that the witnesses have been won over. All the four witnesses who were examined, resiled from their statements given to the Police and crossexamined by the APP, as pointed out above, but, at no point of time, it transpired in the cross- examination to suggest that they have been won over. In this regard, we further rely upon the judgment in George N.S. vs. Commissioner of Police (supra). Paras 2 and 12 of the judgment are as follows;
"2. A statutory appeal against the order of Disciplinary Authority was preferred by the petitioner to the Additional Commissioner of Police under Section 23 of Delhi Police (Punishment and Appeal) Rules, 1980 (for short, he Rules") against the order dated 11th September 1999 as passed the Disciplinary Authority. The Appellate Authority maintained the order of Disciplinary Authority, recording that the appellant has already been held guilty in an enquiry under the Rules and as such there was no need to examine his case under Rule 12 of the Rules. The orders of Disciplinary Authority and the Appellate Authority were challenged before the Central Administrative Tribunal (CAT) which came to be dismissed vide the impugned order dated 22nd January 2000. While summarily rejecting the application of the petitioner, CAT observed as under:
"We have perused the order passed by the Criminal Court and we find that Ms. Licy who has been 15 OA No. 380/2020 Item No.8/C-II examined in the criminal court was not made available for cross examination. This was the substantial ground which has led to the acquittal of the applicant. As far as Ms. Licy is concerned, she was made available in the disciplinary proceedings. She was examined in chief and thereafter cross examined. Since the order of acquittal was passed on the ground that she had not made herself available for cross examination, the acquittal can be said to have been passed on technical grounds. Similarly, her evidence which was not available for cross examination in the criminal court was made available in the disciplinary proceedings. Hence, additional evidence had become available in the disciplinary proceedings. In the circumstances, the case falls under the exception carved out in clauses
(a) and (e) of Rule 12 of Delhi Police (Punishment and Appeal) Rules, 1980 which has been relied upon by the applicant in support of his contention.
As far as the finding of guilt is concerned, the same is based on evidence which has been led in the disciplinary proceedings. It is impermissible for this Tribunal to reappreciate evidence and to come to a finding contrary to the one arrived at by the disciplinary authority."
12. The acquittal on account of prosecution failing to prove its case beyond reasonable doubt or on account of lack of evidence or no evidence cannot be termed as acquittal on technical ground. Such grounds i.e. technical ground, would be, to illustrate a few, limitation which has now been prescribed by recent amendment in Cr.P.C or trial without obtaining sanction as required under Section 197 Cr.P.C in cases where it is required and the trial being held without obtaining such sanction. If the legislature intended that acquittal on account of benefit of doubt or prosecution failing to prove a case beyond reasonable doubt etc. were not to be a bar in the departmental proceedings, it would have so specifically provided as Exception in Rule.
33. In view of the above discussions, we are of the considered view that exceptions mentioned under Rule 12 (a) and (b) of Delhi Police (Punishment & Appeal) Rules, 1980 are not applicable in this case. Having considered the applicability of Rule 12 (a) and (b) of aforementioned rules, we deem appropriate to go back to the starting para of the said Rule which reads as follows :-
"When a Police Officer has been tried and acquitted by a criminal court, he shall not be punished departmentally on the same charge or on a different charge upon the evidence cited in the criminal case, whether actually led or not.......".16 OA No. 380/2020
Item No.8/C-II
34. The issue before us is whether in the department proceeding, the inquiry was conducted on the same charge as in the criminal case or not. We have carefully gone through the summary of allegations/charges and to our mind the charge has two components (1) the applicant came in a drunken state and (2) he tried to shake hand with the complainant saying hello, followed by act of misbehavior.
35. The criminal proceeding considered the case in its entirity including the 2nd charge, which was definitely more serious and after considering the same at length the applicant was acquitted. But the fact that he was drunk has been mentioned in the criminal proceedings and, as evident from the findings of the inquiry report and counter reply, in fact the applicant himself admitted about the consumption of liquor.
36. We also find that while in the criminal proceeding 4 PWs were produced, in the departmental proceedings in addition two more PWs were there, who were examined to establish applicant‟s presence at the place of incident and the fact of being drunk.
37. However, the learned counsel for the respondents submits that all the six witnesses were cited in the criminal proceedings as well, but the PWs mentioned above were not led.
38. Therefore, we are of the view that not only the provisions of Rule (a) and (b) do not apply in this case, but we also find that the applicant has been punished departmentally on the same set of the charge as in criminal case. Further the list of witnesses was also common in criminal and departmental proceedings though two more witnesses were not led during the criminal proceedings, who deposed against the applicant in the departmental proceedings on the charge of the applicant being under influence of liquor.
39. In view of the aforementioned facts and circumstances, the O.A. is partly allowed. The impugned orders dated 14.07.2014, 15.09.2014, 09.03.2015 and 17.07.2015 are set aside. The applicant is restored to his original position with his pay etc. and will be entitled to all consequential benefits as per relevant rules. The competent authority amongst the respondents will take necessary steps to comply with above directions as expeditiously as possible and preferably within 8 weeks from the date of receipt of a certified copy of this order. No order as to costs."
14. We are of the considered view that despite adequate opportunity given to the respondents, they have not considered the matter in the light of mandatory provisions 17 OA No. 380/2020 Item No.8/C-II of Rule 12 of the Delhi Police (Punishment & Appeal) Rules. Ordinarily, we would have remitted the matter to the respondents to revisit and re-consider the matter in the light of provisions of Rule 12 the Delhi Police (Punishment & Appeal) Rules, however, though the proceeding was initiated in the year 2012 and the applicant was acquitted by the learned Appellate Court in the said case FIR on 05.01.2016, the IO has also not proved the allegation in the DE and as the present OA is pending adjudication before this Tribunal for more than 4 years, we are of the considered view that the matter deserves to be put to quietus.
15. In view of the aforesaid, the present OA is allowed with the following directions:-
(i) The impugned orders dated 05.07.2017, 12.01.2018, 27.03.2018 and 22.03.2019 are quashed and set aside.
(ii) The applicant shall be entitled to all the consequential benefits.
(iii) The Competent Authority amongst the respondents shall take necessary steps to comply with the above directions as expeditiously as possible and preferably 18 OA No. 380/2020 Item No.8/C-II within 8 weeks from the date of receipt of a certified copy of this Order.
(iv) However, in the facts and circumstances, there shall be no order as to costs.
(Anand S. Khati) (R.N. Singh)
Member (A) Member (J)
/akshaya/