Central Administrative Tribunal - Delhi
Inspr. Rameshwar Khatri S/O Dharam ... vs Government Of Nctd Through on 10 December, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI Original Application No.3519/2009 This the 10th day of December, 2009 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE SHRI L. K. JOSHI, VICE-CHAIRMAN (A) 1. Inspr. Rameshwar Khatri S/O Dharam Singh, R/O C-1/23, Prashant Vihar, Delhi. 2. ASI Ravinder Kumar S/O Ganga Ram, R/O 1-A, Police Colony, Shahdara, Delhi. 3. HC Devender Kumar S/O Om Prakash, R/o 240 Police Colony, Ahata Ki Dara, Sadar Bazar, Delhi. 4. HC Vijay Bahadur s/O Raghubir Singh, R/O B-5/38, Sector 15, Rohini, Delhi. 5. Constable Rakesh S/O Rajpal Singh, R/O V-4/352, Gali No.15A, Vijay Park, Maujpur, Delhi. 6. Constable Naresh Kumar S/O Baru singh, R/O village Isspur Til, PS Kadhla, Distt. Meerut, Mujaffar Nagar (UP). 7. Constable Surender Singh S/O Surat Singh, R/O Village Balwas, Distt. Rewari (Haryana). 8. Kalim Beg S/O Salim Beg, R/O Mohalla Mugal Pura, Amanat Wali Gali, Pandav Road, Distt Baghpat (UP). Applicants ( By Shri Sachin Chauhan, Advocate ) Versus 1. Government of NCTD through Commissioner of Police, Police Headquarters, IP Estate, New Delhi. 2. Additional Commissioner of Police (Crime), Police Headquarters, IP Estate, New Delhi. 3. Deputy Commissioner of Police, Crime & Railways through Police Headquarters, IP Estate, MSO Building, New Delhi. Respondents O R D E R Justice V. K. Bali, Chairman:
The applicants, Rameshwar Khatri and others, who belong to Delhi Police, as Inspector, ASI, Head Constables and Constables, are facing both criminal trial and departmental proceedings. In this Original Application filed jointly by them, the prayer is to keep the departmental enquiry in abeyance till conclusion of the criminal trial, and all orders that have been passed in the continuing departmental proceedings to be set aside and quashed.
2. The facts as set out in the Application and accompanying documents reveal that the applicants are facing trial vide FIR No.33/2008 dated 14.2.2008 u/s/ 384/385/389/342/ 120B IPC PS Economic Offences Wing. On 17.8.2009 departmental enquiry was initiated. The allegation subject matter of enquiry against the applicants is that Inspr. Rameshwar Khatri, ASI Ravinder Kumar, HC Devender Malik, HC Vijay Bahadur, const. Rakesh Kumar, Const. Surinder Rathi, Const. Kalim Beg and Const. Naresh Kumar, while posted in Special Staff, Central District, had received information through Const. Naresh regarding illegal kidney transplant scam run by Dr. Amit and Dr. Upender at Gurgaon, Haryana. Const. Naresh passed it on to Inspr. Rameshwar Khatri, who deputed ASI Ravinder Kumar Singh and abovesaid officials to conduct raid. On 7.1.2008 without lodging any departure in the daily diary, the team apprehended one Shahid r/o Meerut from Loni, Ghaziabad (UP) who further led to apprehension of Kamaljit Singh and Hemraj from the Gurudwara near AIIMS. Kamaljit Singh led them to the residence of Dr. Amit at Gurgaon, where Dr. Upender was apprehended. The team struck a deal with Dr. Upender to secure their release and extorted a sum of Rs.19.85 lacs from him at the instance of Inspector Special Staff. The team members let them off, without taking any legal action. They distributed the extorted money amongst them, including Inspector Special Staff. Subsequently UP and Gurgaon police registered two criminal cases which were later transferred to CBI. This illegal act of the team of Special Staff had prevented an illegal transplant scam from being unearthed and also defamed the image of Delhi Police in the eyes of general public. This act on the part of the applicants in the charge memo has been stated to be amounting to gross misconduct, negligence and dereliction in discharge of their official duties which would render them liable to be dealt with departmentally under provisions of Delhi Police (Punishment & Appeal) Rules, 1980. The applicants made representation requesting the concerned authorities to keep the disciplinary enquiry in abeyance while making reference to Standing Order (SO) of 2008. However, the enquiry officer issued summary of allegation and list of witnesses and documents on 19.8.2009 to the applicants. Their representation has since been rejected. The applicants have placed on records summary of allegation as also the FIR in their endeavour to show that the allegations, be it criminal trial or departmental enquiry, are the same. The primary and in fact the only contention raised on the basis of identical allegations in the criminal trial and departmental proceedings, is that departmental enquiry would involve complicated questions of law and fact which would emerge as the trial goes on, and, therefore, the respondents ought to have stayed the departmental proceedings awaiting outcome of the criminal trial. In their further endeavour to show that the matter involves complicated questions of law and fact what is pleaded is that one Md. Shahid who is witness no.1 in the departmental enquiry, is himself facing criminal trials, and has in fact, in one case, been convicted also. It is pleaded and so urged that how can reliance be placed upon the statement of such a witness. It is also the case of the applicants that Dr. Amit and Dr. Upender, from whom money was allegedly extorted, who could be star witnesses to establish misconduct of the applicant, if any, have not been cited as witnesses, and that without their evidence the department would not be able to prove the case against the applicants. Insofar as, Md. Shahid, witness no.1, is concerned, it is stated that since he is himself involved in offences involving illegal kidney transplant, no reliance could be placed on his deposition, whereas with regard to Dr. Amit and Dr. upendra, who too are involved in kidney transplant scam, it is stated that without their evidence nothing can be proved against the applicants. With regard to witness no.4, who is again stated to be involved in the kidney transplant scam, the contention is same as is with regard to witness no.1. Insofar as, witnesses 5 to 8 are concerned, it is the case of the applicants that they are the officers of different telecom companies, who may prove the presence of the applicants in a particular area by scientifically proving the signal of the mobile numbers of the applicants being received by a tower situated in a particular area, and inasmuch as, physical presence of the applicants can be proved by only the nodal officers of different telecom companies, the present way of establishing their presence through the cell phones would involve complicated question of law and fact.
3. We have heard the learned counsel representing the applicants and with his assistance examined the records of the case. The settled law on the issue is that departmental proceedings and proceedings in criminal case can proceed simultaneously and there is no bar in their being conducted simultaneously. If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature, which involves complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case. The Honble Supreme Court in Capt. M. Paul Anthony v Bharat Gold Mines Ltd. [AIR 199 SC 1416], after taking into consideration the entire case law starting from Delhi Cloth and General Mills Ltd. v Kushal Bhan [(1960 3 SCR 227] up to Depot Manager, Andhra Pradesh State Road Transport Corporation v Mohd. Ysuf Miyan [(1997) 2 SCC 699], culled out the following principles:
(i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately.
(ii) If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case.
(iii) Whether the nature of a charge in a criminal case is grave and whether complicated questions of fact and law are involved in that case, will depend upon the nature of offence, the nature of the case launched against the employee on the basis of evidence and material collected against him during investigation or as reflected in the charge sheet.
(iv) The factors mentioned at (ii) and (iii) above cannot be considered in isolation to stay the departmental proceedings but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed.
(v) If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date, so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty, administration may get rid of him at the earliest. We may also refer to another decision of the Honble Supreme court in Kendriya vidyalaya Sangathan v T. rinivas [AIR 2004 SC 4127], wherein while referring to some earlier decisions including in Capt. M. Paul Anthony (supra), it was held that advisability, desirability, or propriety, as the case may be, of staying the departmental enquiry has to be determined in each case taking into consideration all the facts and circumstances of the case, and that stay of disciplinary proceedings cannot be, and should not be, a matter of course. In Kendriya Vidyalaya Sangathan (supra) the allegation against the employee was of receiving bribe. We may refer to SO No.125/2008 issued by the respondents, according to which, counsel for the applicants would contend that the proceedings ought to have been stayed. Para 10 of the said SO deals with parallel departmental proceedings when court case is pending. Reference has been made to the judgment of the Honble Supreme Court in Capt. M. Paul Anthony (supra) and the principles culled out therefrom as reproduced above. Reference is also to the judgment of Kendriya Vidyalaya Sangathan (supra) and the law laid down therein. The SO appears to have been issued in obedience to the law laid down by the Honble Supreme Court in the two decisions as mentioned above. Even though, pleaded that vide the SO aforesaid the departmental proceedings ought to have been stayed, but the learned counsel during the course of arguments could not pin point anything from the SO which may debar departmental proceedings. The settled law on the issue involved in the present case appears to be that each case has to be examined and it is the facts and circumstances of each case which have to be taken into consideration to decide whether departmental proceedings should be stayed. There is no straitjacket formula. We may only mention that even smallest issues are debatable, but what really has to be looked into is as to whether such debatable questions have complications and are really vexed questions of law and fact. Feasibility, desirability or propriety has to be determined in each case taking into consideration all the facts and circumstances of the case. The mere fact that deposition of a witness may not be accepted for variety of reasons, and in the present case, that the witnesses are themselves accused in the kidney transplant racket, or that such of the persons from whom the applicants might have extorted money are not witnesses in departmental enquiry, does not appear to be a complicated question of fact and law. Surely the enquiry officer and the disciplinary authority would go into all these aspects of the case. Only supposition at the end of the applicants that the department may not be able to prove charges against them on the basis of witnesses and documents, cannot be stated to be a complicated question of fact and law. Further, in our considered view when the criminal trials are likely to take long time for variety of reasons and primarily, because of heavy pendency in courts, the employees facing charges such as extortion of money or taking bribe, should rather be put through departmental enquiry as early as possible so that if they are innocent, their names are cleared and if they are actually guilty, to quit service. Extortion of money and accepting bribe may not stand on different footing inasmuch as, bribe may be given by the concerned person voluntarily, whereas extortion of money may be on threats extended by the employee. In the SO relied upon by the applicants, in fact we find that it is specifically said that where police officers are facing criminal proceedings especially under Prevention of Corruption act or cases where moral turpitude is involved, departmental enquiry proceedings can also be initiated simultaneously and should not be kept/held in abeyance due to pendency of such criminal proceedings, even if evidence in both the proceedings may be the same. We find nothing wrong in the SO. In fact, bribery or extortion of money, which as mentioned above, may have very little difference, need to be probed by the department as early as possible. Corruption is eating into the very vitals of the society. Such persons need not be kept in service awaiting result of criminal trial for years and years, as that demoralizes everyone concerned. If the department may have proceeded in a case which may have no legs to stand, it is good for the employee that he steers clear as early as possible. It is for his benefit, as otherwise he would be looked down upon by everyone.
4. Before we may part with this order, we may only mention that the standard of proof required in departmental enquiry is different than the one required in a criminal trial.
5. Finding no merit in this Application, we dismiss the same in limine.
( L. K. Joshi ) ( V. K. Bali ) Vice-Chairman (A) Chairman /as/