Central Administrative Tribunal - Delhi
Pawan Yadav (Sub Inspector No. D-498 vs Government Of Nct Of Delhi on 20 May, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH: NEW DELHI OA No.2334/2013 Order reserved on: 06.03.2014 Order pronounced on: 20.05.2014 HONBLE MR. SUDHIR KUMAR, MEMBER (A) HONBLE MR. A.K. BHARDWAJ, MEMBER (J) Pawan Yadav (Sub Inspector No. D-4981, PIS No.28030790) R/o House No.484 B, Gali No.2, Maujpur, New Delhi-110053. -Applicant (By Advocate: Shri Nasir Ahmed) Versus 1. Government of NCT of Delhi Through The Commissioner of Delhi Police, Police Headquarters, I.P. Estate, M.S.O. Building, New Delhi-02. 2. Dy. Commissioner of Police, South Distt. Hauz Khas, new Delhi Through Commissioner of Police, Police Headquarters, I.P. Estate, M.S.O. Building, New Delhi-110002 3. The Enquiry Officer, ACP, Sh. Kulwant Singh, PIS No. 16780003, Operation Cell, South Distt., Pushp Vihar, New Delhi Through Commissioner of Police, Police Headquarters, I.P. Estate, M.S.O. Building, New Delhi-110002 -Respondents (By Advocate: Shri N.K. Singh for Mrs. Avnish Ahlawat) O R D E R Per Mr. Sudhir Kumar, Member (A):
This OA has been filed by the applicant alleging that in view of his being entrusted to be the Investigation Officer in Criminal Case in FIR No.205/2011 dated 09.06.2011 against some influential person U/S 420, 467, 468, 471 and 120B of IPC at Police Station Hauz Khas, New Delhi, which was registered on the orders of the Ld. Traffic Court, District Court Saket by the Police, while he was busy in his work, as a result of a conspiracy, on 30.12.2011 some 10-15 persons in civil dress carried him forcefully to the adjoining room in the Police Station, and later on falsely implicated him in a false criminal case under Section 7 of the Prevention of Corruption Act, 1988, registered at Lodhi Colony, New Delhi, by the CBI, which, he has alleged was on account of their collusion with the accused person of the FIR No.205/2011, which was being investigated by him in his official capacity.
2. CBI filed a challan in the concerned Trial Court at District Court, Patiala House, New Delhi, in the 1st week of July, 2012, and the proceedings of the Trial Court in the criminal case against him were continued. The applicant is aggrieved that simultaneously a Departmental Enquiry was also initiated against him by the Department on 21.11.2012, and that also is being proceeded ahead against him, with summary of allegations having been issued to him, and calling of witnesses in the Departmental Enquiry about to commence.
3. The applicant first gave an application dated 03.12.2012 asking for him to be provided with many additional documents, and call details records etc., and, later on, represented for keeping the Departmental Enquiry itself in abeyance/withdrawn/dropped till the conclusion of the criminal trial, because mixed questions of law or facts are involved, which require judicial scrutiny, and can be decided only by judicial authorities, and departmental authorities are debarred from resolving such mixed questions of law and facts in quasi-judicial proceedings of the Departmental Enquiry. His further submission is that the charges, evidence, documents and witnesses of both the criminal case as well as the Departmental Enquiry are the same, and, therefore, continuing with the Departmental Enquiry is a clear violation of Rules 11,12 & 15 of Delhi Police (Punishment & Appeal) Rules, 1980. He has further submitted that in spite of repeated requests, representations and meetings with the higher officers of his own department in Delhi Police, and in the CBI, by the applicant and his family members, to show his innocence, and explain about his having been falsely implicated by the CBI in that case, which led to the challan being filed before the concerned Trial Court against him, and that the CBI has not investigated the case against him properly, and has filed the challan before the concerned Trial Court because of unknown reasons or cause, and acting on the instructions of the persons involved in the criminal case No.205/2011 dated 09.06.2011 (supra) of which he is the Investigating Officer.
4. The applicant has placed reliance on the judgment of Honble Apex Court in HPCL & Ors. Vs. Sarvesh Beri (2005) 10 SCC 471, in which it has been held that when mixed questions of law and facts are involved, and both departmental and criminal proceedings are based on identical or similar set of facts, the Departmental Enquiry has to be stayed. He has pleaded that Rule-12 of the Delhi Police (Punishment & Appeal) Rules, 1980, has also clearly laid down that if the charges alleged in the Departmental Enquiry are the same, as that in the criminal case, then the Departmental Enquiry has to be kept in abeyance till the conclusion of the criminal trial, and also lays down the action, which has to be taken up after acquittal from judicial Courts. He has, therefore, further relied upon the law as laid down by the Honble Apex Court in Capt. M. Paul Anthony vs. Bharat Gold Mines Ltd. and Another AIR 1999 SC 1416, and the Full Bench of this Tribunal in the matter of ASI Sukhdev Singh vs. Govt. of NCT of Delhi in OA No.2816/2008, judgment dated 18.08.2010, to state that judicial verdict delivered by the judicial officer would always prevail over the findings of the Departmental Enquiry, and has, therefore, prayed that the Departmental Enquiry be kept in abeyance, in terms of the Standing Order No. 125/2008 of Delhi Police, since his case is fully covered by that order. He has also relied upon an interim order dated 05.07.2010 passed by this Tribunal in OA No. 2047/2010, whereby stay in parallel proceedings has been granted in respect of the departmental proceedings in the case of Delhi Police officials.
5. He has taken the legal grounds that any executive instructions and Standing Orders, which have been issued ignoring Rule-12 of the Delhi Police (Punishment & Appeal) Rules, 1980, are bad and ultra vires. He has submitted that in case of a police officer involved in a case of moral turpitude, including corruption, the Departmental Enquiry must not proceed simultaneously, and only after the outcome of the criminal trial as per Rule-11 (3), if removal or dismissal is not found apt, then only, after examining the Criminal Trial Courts judgment, the Disciplinary Authority has the jurisdiction to take such departmental action, and in those cases which are covered by Rule-11 (1), where the official has been convicted, and the Disciplinary Authority decides that the official has to be imposed with penalty of dismissal or removal, no enquiry is required to be held to impose such a punishment.
6. It was, therefore, submitted by the applicant that holding of a Departmental Enquiry now amounts to assuming the outcome of the criminal trial, and deeming his conviction. He has also submitted that in cases where commission of a cognizable offence is made out against a Police Officer in his official relationship with the public, it is mandated upon the Additional Commissioner of Police to hold a Preliminary Enquiry, and then to decide as to whether a criminal case should be registered and investigated, or a Departmental Enquiry alone should be held. He had, therefore, pleaded that when once the Preliminary Enquiry has been held, and a criminal case has been registered and investigated, a Departmental Enquiry being held simultaneously is barred.
7. He had, therefore, assailed the actions of the respondents by taking the following grounds:-
That when the criminal trial is pending before the concerned Trial Court, the action of the department in not keeping the Departmental Enquiry in abeyance, despite the charge and evidence involved in both the proceedings being the same, is in violation of Rule-12 (supra), and hence bad in law, and his representation in this regard has been rejected in an illegal, arbitrary, malafide, unjustified, and unreasonable manner.
That in spite of the applicant and his family members personally approaching the higher officers of the Police, and of the CBI, to explain his having being falsely implicated by the CBI in the said criminal case, without undertaking any proper investigation into the case, the CBI Investigating Officer had filed a challan before the concerned Trial Court.
That while initiating the Departmental Enquiry through order dated 21.11.2012 the Disciplinary Authority has not appreciated the fact that the criminal case under trial is also based on similar facts ad evidence.
That because mixed questions of law and facts are involved, and because the charges, evidence, documents and witnesses involved in both the proceedings are the same, they can be decided only by the judicial authority first, and not by departmental authority, in quasi-judicial proceedings, which is a clear violation of Rules 11,12, & 15 of the concerned Delhi Police Rules (supra).
That such a contention as above was accepted by this Tribunal in OA No.1273/2006.
That reliance was being placed by the applicant on Honble Apex Courts judgment in HPCL & Ors. Vs. Sarvesh Beri (supra).
That the applicant cannot disclose his defence at this pre-mature stage of the criminal case pending before the Trial Court, where only challan had been filed.
That Rule-12 of the concerned Delhi Police (Punishment & Appeal) Rules (supra) makes it obligatory for the departmental authorities to wait till the conclusion of the criminal trial, and then take action, following judicial acquittal or conviction.
That the defence disclosed by the applicant in Departmental Enquiry may be used later against him in the criminal trial, which will be in violation of the law as laid down by the Honble Apex Court in Capt. M.Paul Anthonys case, and also a violation of principles of natural justice.
That the respondents have themselves failed to follow their own Standing Order No.125 of 2008.
That in another OA No.2047/2010, in parallel proceedings, this Tribunal had granted an interim order dated 05.07.2010.
That Standing Orders cannot be issued ignoring Rule-12 of the Delhi Police (Punishment & Appeal) Rules (supra), which have been enacted under Article 309 of the Constitution, and any executive instruction to the contrary is bad in law.
That holding of departmental enquiry simultaneously, assuming the outcome of the criminal trial and the conviction of the police officials, would amount to pre-judging the issue even before conviction has taken place, and would render Rule-11 of the said Delhi Police Rules (supra) otiose and redundant.
That simultaneous continuation of the Departmental Enquiry along with the criminal trial, without applying the provisions of Rules-11 & 12 of the Delhi Police Rules (supra) causes prejudice to the concerned official.
8. The applicant had, therefore, prayed for the following reliefs:-
i) To set aside the order dated 21.11.2012 and to further direct the respondent to not to proceed in departmental enquiry/kept in abeyance till the conclusion of criminal trial in FIR RC-DAI-A-0032 CBI-ACB, Lodhi Colony, New Delhi, U/S 7 P.C. Act dated 30.12.2011 and to allow the representation of the applicant dated 22.06.2013.
ii) To direct the respondents to provide the required documents to the applicants as demanded by him vide application dated 3/12/2012; and
iii) To declare the provisions of S.O. No.125/2008 as ultra virus which are contrary to Rule-12 of Delhi Police (Punishment & Appeal) Rules 1980; and
iv) Any other relief which this Honble Court deems fit and proper may also be awarded to the applicant.
9. The respondents filed their counter reply on 16.09.2013. It was submitted that a complaint had been made against the present applicant that he had demanded a bribe of Rs.20,000/- from the complainant on the pretext of furnishing bail bond papers of a relative of the said complainant, and on 30.12.2011, a CBI Anti-Corruption Branch team had apprehended the applicant red handed while accepting the said bribe, because of which he was arrested by the CBI, and a case was registered against him. It was submitted that the Departmental Enquiry has been initiated against the applicant under the provisions of Rule-16 of the relevant Delhi Police (Punishment & Appeal) Rules, 1980, and as per Para-10 of the Standing Order No.128/2008, after having considered the Honble Apex Courts judgment in the case of Capt. M. Paul Anthony (supra), it has been ordered that in all cases where Police Officers may be facing criminal proceedings, especially under Prevention of Corruption Act or where moral turpitude is involved, departmental proceedings can also be initiated simultaneously, even if the evidence in both the proceedings may be same. It was submitted that the Full Bench of this Tribunal also had in its order dated 18.02.2011 in ASI Sukhdev Singhs case (supra) held that there was no need to put on hold even the final orders in the departmental proceedings awaiting the decision of criminal Court. The actions taken by the Disciplinary Authority were, therefore, defended to be fully justified, and it was submitted that the Full Bench had followed the law as laid down by the Honble Apex Court in Kendriya Vidyalaya Sangathan & Ors. vs. T. Srinivas (AIR 2004 SC 4127).
10. The respondents had thereafter explained the facts of the case, which led to the applicant being caught red handed accepting the bribe, as he had demanded, and was arrested by the CBI. It was further submitted that the application moved by the applicant on 03.12.2012 was considered by the respondents, and the requisite documents/information was supplied vide Office U.O. No. 11957/HAP(P-II)/SD dated 19.06.13, and that the CBI also had through their letter dated 30.5.2013 intimated that a set of relied upon documents had been supplied to the applicant, through the Trial Court, and hence there was no need to supply any further documents to him, and if any documents are deficient, he may obtain the same through the Trial Court, which the applicant has been informed vide endorsement dated 18.06.2013. It was further submitted that since the Departmental Enquiry has been initiated against the applicant under Rule-16 of the relevant Delhi Police Rules (supra), the provisions of Rule-11 & 12 are not attracted in his case at this stage, as Rule-12 lays down the action to be followed after acquittal from the judicial Trial Court. It was further clarified that while FIR in the criminal case had been registered in regard to the criminality aspect, whereas a Departmental Enquiry is held regarding the misconduct of the delinquent, and even the standards of proof in both proceedings are different. The judgment of the Full Bench in ASI Sukhdev Singhs case (supra) was cited again and again in response to various averments made by the applicant in this OA, and also in response to the grounds taken by the applicant. Even in reply to the grounds taken by the applicant, the Full Bench judgment in ASI Sukhdev Singhs case (supra) was relied upon by the respondents, and it was prayed that the OA is devoid of any merits, and may be dismissed with costs.
11. Copies of relevant Circulars dated 13.10.2010, and extracts of the relevant Standing Orders, as also the Full Bench judgment in ASI Sukhdev Singhs case (supra), were filed by the respondents. The new Standing Order No. A-20, which has replaced the previous Standing Order No.125/2008, was also filed, in which, after taking note of all the case law as decided by the Honble Apex Court as on that date, the procedure for conducting Departmental Enquiry had been explained to the Police Officers in Delhi Police in detail on 25.10.2010. The Govt. of India Ministry of Home Affairs OM dated 25.08.1961 on the subject of supply of copies of documents, and affording access to official records to the delinquent Govt. officials, had also been produced. Standing general instructions issued to the Inquiry Officers were also produced as Annexure-3 of the Standing Order No.A-20 dated 25.10.2010.
12. The applicant chose to file a rejoinder on 02.01.2014 more or less reiterating his contentions as raised in the OA and already discussed above. He had contested that the entire documents, as asked for by him vide application dated 03.12.2012, had been supplied to him. It was submitted that non-supply of material information/record, which is necessary for a fair and just adjudication of the enquiry, will seriously prejudice the defence of the applicant, as he will not get proper opportunity to cross-examine the witnesses, which will vitiate the enquiry. It was submitted that he had prayed for documents, which were the official records of CBI, and the documents related to the disciplinary enquiry case, but the applicant is completely helpless, and has no authority to collect these documents even from CBI, as CBI has now been excluded from the RTI Act, 2005, vide Gazette Notification dated 09.06.2011 (Anneuxre-B-4). In respect of some other documents concerning call records data, it was submitted that the custodian of those documents were M/s Bharti Cellular Ltd, M/s Vodafone Cellular Ltd., M/s MTNL and M/s Idea Cellular Ltd., New Delhi, which call record details are very vital, and would be needed before the examination of witnesses, in order to counter their version, if they toe the line of the false story concocted by CBI against the applicant. It was submitted that only when it was not desirable in public interest to allow such access of documents, can supply of documents be refused or denied, and the reasons for such refusal should be cogent and substantial, and should invariably be recorded in writing.
13. It was also submitted that he has learnt through an RTI application that the complainant of the case against him has also expressed his unavailability for deposing before the enquiry proceedings, and has desired to depose before the CBI Court first. It was, therefore, submitted that since all documents and witnesses relied upon by the prosecution before the Special Court, CBI, and also before the Inquiry Officer in the departmental proceedings are totally identical, and are based on similar set of facts, which involves complicated mixed questions of law and facts, it will be highly desirable to stay the departmental proceedings till the conclusion of the criminal trial, and there shall be no adverse effect on the merits of the case also, as the Inquiry Officer would be benefitted by the judicial verdict, which would enable him to reach at a right, just and fair conclusion.
14. It was further submitted that in similar circumstances, this Tribunal has in its judgment and order dated 28.04.2010 in OA No.2666/2010 Dilip Kumar Thakur vs. CBI & Ors. stayed the enquiry proceedings, till the common prosecution witnesses in both proceedings are examined and cross-examined by the applicant in the criminal trial Court, and that his case also was covered fully with the aforesaid judgment, enclosed by him as Annexure B-6 to the rejoinder. It was, therefore, prayed that the counter reply of the respondents may be discarded, and the OA be allowed in terms of the prayers made therein. Annexure B-1&II contained the details of the 26 Mobile Numbers in respect of which the applicant had sought for call details records for periods ranging from many months, to more than a year in many cases. On the point of non-supply of documents relied upon by the Inquiry Officer, the applicant had submitted at Annexure AB-3, a copy of the Honble Apex Courts judgment dated 01.11.1960 in Trilok Nath vs. Union of India & Ors in Civil Appeal No.322/1957. Annexure B-6 was a copy of the order dated 28.04.2010 in Dilip Kumar Thakur (supra).
15. Heard. During the arguments, learned counsel for the applicant heavily relied upon the Honble Apex Courts judgment in Capt. M.Paul Anthony (supra), and the other cases cited by him. In turn, during his arguments, the learned counsel for the respondents relied upon the judgment of the Honble Delhi High Court in LPA No.2530/2005 dated 29.11.2005 Sanjeev Verma vs. Distt. And Session Judge and Anr., and he had also filed a copy of the Full Bench judgment dated 18.02.2011 in ASI Sukhdev Singh (supra) placing reliance on the same.
16. We have given our anxious consideration to the facts and pleadings of this case, and the arguments advanced before us. From a discussion of the pleadings and arguments of both the sides, only two issues have emerged - firstly, the issue as to whether the Departmental Enquiry should necessarily be stayed during the pendency of the criminal case, when both arise from the same sequence of events, though the criminal case deals with the criminality aspect of the incident concerned, and the Departmental Enquiry deals with the violation of Conduct Rules, and involvement of the delinquent Government officials in actions where moral turpitude and improper behaviour on the part of the Government servant is involved, and, secondly as to whether the delinquent Government official is entitled to ask for any document whatsoever, and the Disciplinary Authority, and his delegatee the Inquiry Officer, are bound to supply each and every document, as demanded by the delinquent Government official, or they can decide upon its relevance, and supply only those documents, which are relevant for the purpose of proving the charge as levelled against the delinquent Government official.
17. The question as to whether Departmental Enquiry can be conducted or should be stayed pending the criminal case against the petitioner, has already been decided by the Full Bench of this Tribunal in ASI Sukhdev Singh (supra). We need not reproduce from that judgment, as both the sides have relied upon the same, and in the operative portion it was held by the Full Bench that there would be no need to put on hold the final orders in departmental proceedings awaiting the decision of the criminal court.
18. We also find that this issue has been dealt with in a very short and crisp manner by the Honble Delhi High Court in its judgment and order dated 29.11.2005 in LPA No.2530/2005, Sanjeev Verma vs. District & Sessions Judge & Anr. (supra), a copy of which was produced by the learned counsel for the respondents during the course of hearing of the case. The Bench of Delhi High Court headed by Honble Mr. Justice Markandeya Katju, with Mr. Justice Madan B Lokur, as their Lordships then were, had held as follows:-
6. The short question of the case is whether the departmental inquiry has to be stayed pending the criminal case against the petitioner.
7. Learned counsel for the appellant has relied on the decision of the Supreme Court in the case of Captain M. Paul Anthony v. Bharat Gold Mines Ltd. and Anr. .
8. We have carefully perused the said decision and we find that it has not been stated therein that the departmental proceedings have to be stayed if there is a criminal case on the same charges. All that has been said in para 22 (ii) of the said decision is that it would be desirable to stay the departmental proceedings till the conclusion of the criminal case.
9. Hence, it is clear that there is no absolute bar to the holding of the departmental proceedings, and it is in the discretion of the disciplinary authority to stay the proceedings or to continue with it. This Court cannot ordinarily interfere with discretionary orders, unless the discretion is exercised in a palpably arbitrary or mala fide manner.
10. Where the matter is left to the discretion of the concerned authority, it is well settled that the Court will not ordinarily interfere with the exercise or non-exercise of that discretion vide Veerappa Pillai v. Raman & Raman Ltd. and Ors. , The Vice Chancellor, Utkal University and Ors. v. S.K.Ghosh and Ors. (vide paragraphs 18 and 19).
11. The Court exercising judicial review over an administrative authority cannot sit over the decision of the authority simply because the Court thinks it to be unreasonable. The Court interference is limited to the decisions which are patently perverse, arbitrary or capricious vide Rohtas Industries Ltd. v. S.D.Agarwal and Anr. etc. , Baikuntha Nath Das and Anr. v. CDMO, Baripada and Anr. , Posts & Telegraphs Board and Ors. v. C.S.N. Murthy etc.
12. The Court should not interfere with a discretionary order merely on the ground that if the Court were required to exercise the discretion it would have made a different order vide Baldota Bros. v. Libra Mining Works AIR 1961 SC 100, A.V. Venkateswaran v. Ramchand Sobhraj Wadhwani and Anr. etc.
13. Moreover the decision in M.Paul's Anthony (supra) has been considered by the subsequent Supreme Court decision in Kendriya Vidyalaya Sangthan v. T. Srinivas . In that decision the Supreme Court observed: "On a reading of M. Paul Anthony case it is noted that there is consensus of judicial opinion on the basic principle that proceedings in a criminal case and departmental proceedings can go on simultaneously, however, this Court noticed that certain exceptions have been carved out to the said basic principle.
In State of Rajasthan v. B.K. Meena this Court held: (SCC p. 417) "The only ground suggested in the decisions of the Supreme Court as constituting a valid ground for staying the disciplinary proceedings is that 'the defense of the employee in the criminal case may not be prejudiced'. This ground has, however, been hedged in by providing further that this may be done in cases of grave nature involving questions of fact and law. It means that not only the charges must be grave but that the case must involve complicated questions of law and fact. Moreover, '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. Stay of disciplinary proceedings cannot be, and should not be, a matter of course. All the relevant factors, for and against, should be weighed and a decision taken keeping in view the various principles laid down in the Supreme Court's decisions."
From the above, it is clear that the advisability, desirability or propriety, as the case may be, in regard to a departmental enquiry has to be determined in each case taking into consideration all facts and circumstances of the case. This judgment also lays down that the stay of departmental proceedings cannot be and should not be a matter of course."
14. We fully agree with the learned Single Judge who was held that in view of the gravity of the charge, the departmental proceedings should not be stayed. This is also the view taken by the Supreme Court in para 11 & 14 of its decision in the case of Kendriya Vidyalaya Sangthan v. T.Srinivas (supra).
15. For the reasons given above, there is no merit in this appeal and it is dismissed.
(Emphasis supplied)
19. The contention of the learned counsel for the applicant was that the final ratio of the Honble Apex Courts judgment in the case of Captain M. Paul Anthony (supra) was that the disciplinary enquiry and the criminal case cannot be held together, and that the disciplinary enquiry has to necessarily await the outcome of the criminal case. However, in this regard, in a case involving an accident where the delinquent was driving an ambulance, and a person had died, this Tribunal has in its judgment in OA No. 916/2012 dated 04.12.2012, in which one of us [Mr. Sudhir Kumar, Member (A)] was a party, held as follows:-
11..As was observed by the Apex Court in State of Rajasthan vs. B.K.Meena (supra), the disciplinary proceedings are meant not really to punish the guilty, but to keep the administrative machinery unsullied, by getting rid of bad elements. Therefore, while punishment in the form of a sentence in the criminal case may take a long time in coming, the administration cannot be prevented from trying to keep the administrative machinery unsullied by getting rid of bad elements. In the case of M. Paul Anthony (supra)also the Honble Apex Court has laid down the principles in para-22 of the judgment, as reproduced above in para-7 above, for deciding as to whether departmental proceeding case can continue along with the criminal case and para 22 (i) & 22 (v) of the Honble Apex Court judgment would also specifically apply to the instant case.
12. In fact, as has been stated by the Honble Apex Court in the latest case of Divisional Controller, K.S.R.T.C. vs. M.G. Vithal Rao (supra) in para 13 of its order, in the ratio of Capt. M. Paul Anthonys case (supra) also it has been held that there can be no bar for continuing both the criminal and the Departmental proceedings simultaneously, and in doing so the Honble Apex Court placed reliance upon a large number of its earlier judgments, including Delhi Cloth and General Mills Ltd vs.Kushal Bhan (supra), Tata Oil Mills Co. Ltd. vs. The Workman, AIR 1965 SC 155, Jang Bahadur Singh vs. Baij Nath Tiwary, AIR 1969 SC 30, Kusheshwar Dubey vs. M/s Bharat Coking Coal Ltd. & Ors, Nelson Motis vs. Union of India, 1992 3 SLJ 65 SC, AIR 1992 SC 1991.
13. Also, we find that the Respondents Standing Order No.A-20 (previous S.O. No.125/08) is a well-reasoned piece of subordinate legislation, based upon two very oft-cited and important judgments of the Honble Apex Court, and that that Standing Order is the source order for the action taken by the respondents in continuing ahead with the disciplinary enquiry simultaneously with the criminal case. The applicant before us has not laid a challenge to the source Standing Order No.A-20, and he has only challenged the consequential actions of the Respondents, which he cannot be allowed to do so, as per the law laid down by the Honble Apex Court in Edukanti Kistamma (Dead) v. S. Venkatareddy: (2010) 1 SCC 756.
20. Therefore, from the above discussion, it is clear that it has been held that since criminal case may take long time to get decided, and as per the Honble Apex Courts judgments cited in the above judgment, it is clear that the scope of the Disciplinary Enquiry is to keep the department clean and its administrative machinery unsullied, and get rid of bad and unwanted elements, the Departmental Enquiry can very well proceed and come to a conclusion, pending trial of the criminal case. This aspect of the law, as laid down by the Honble Apex Court in the above cited judgments, does not get affected by the fact that in the case of Delhi Police, the Delhi Police (Punishment & Appeal) Rules, 1980 are structured in a little different manner than the CCA (CCA) Rules, 1965, and in fact the above cited judgment of a Coordinate Bench of the Tribunal was very much in the context of Delhi Police Standing Order No.A-20/2010 (earlier S.O. 125/2008).
21. Therefore, the first issue is decided accordingly, and we find no merit in the reliefs, as sought for in Para-8 (i) of the OA.
22. In regard to the second issue as framed by us, and the prayer at Para 8 (i) of the O.A. regarding non-supply of documents to delinquent Government official, the relevant case law was examined by this Tribunal in the case of V.K. Nehru vs. ITDC in OA No.4424/2011 decided on 21.12.2012 in which also one of us [Mr. Sudhir Kumar, Member (A) was a party], by stating as follows:-
22. As has been held by the Honble Apex Court in the case of Chandrama Tewari (supra), it is not necessary that each and every document must be supplied to the delinquent Government servant facing the charges, but instead only the material and relevant documents are necessary to be supplied to him. This judgment has also been reiterated by the Honble Delhi High Court also in Delhi Transport Corporation vs. Jaipal Singh in its judgment in W.P. (C ) No.15794/2004 decided on 06.11.2006 by stating as follows:-
A domestic inquiry is not required to be held in an adversarial manner. A domestic inquiry is in the nature of investigation and not in the nature of adjudication. An inquiry officer has every right to ask questions to the witnesses in order to get clear and whole picture of the incident and asking questions does not amount to cross examination. Even if it amounts to cross examination, it is not illegal. Even a trial judge has a right and obligation to ask such questions to the witness as he considers necessary to bring out the truth. Asking a question, does not convert a judge into a prosecutor. Neither asking of questions to witnesses converts an Enquiry Officer into a prosecutor. There is no requirement of law that in an enquiry there should be a presenting officer. An inquiry can be conducted by an enquiry officer without the help of a presenting officer. A privilege is given to the delinquent employee to appoint his defence assistance because it is considered that the delinquent may not be in a proper state of mind to ask questions to the witnesses of the management or to present his case properly. But a delinquent can always refuse to take help of defence assistance and conduct the case himself. Similarly, management witnesses can depose before the inquiry officer of their own without the help of any presenting officer. An inquiry officer can always ask all relevant questions to the witnesses of both sides in order to know the truth. The Tribunal wrongly concluded that asking of questions by the inquiry officer was contrary to the principles of natural justice. It is now settled law that principles of natural justice cannot be put into a straitjacket formulae. In each case, where it is alleged that there was violation of principles of natural justice, the employee has to show as to how such alleged violation prejudiced his defence. There is no allegations made in this case that any prejudice was caused to the respondent. In 1987 (Supp) SCC 518 Chandrama Tewari vs. Union of India(Through General Manager, Eastern Railways), Supreme Court held:
We have given our anxious consideration to the submissions made on behalf of the appellant and we have further considered the aforesaid authorities referred to by the learned counsel for the appellant but we do not find any merit in the appellant's submissions to justify interference with the High Court's judgment. Article 311 of the Constitution requires that reasonable opportunity of defence must be afforded to a government servant before he is awarded major punishment of dismissal. It further contemplates that disciplinary enquiry must be held in accordance with the rules in a just and fair manner. The procedure at the enquiry must be consistent with the principles of natural justice. Principles of natural justice require that the copy of the document if any relied upon against the party charged should be given to him and he should be afforded opportunity to cross examine the witnesses and to produce his own witnesses in his defence. If findings are recorded against the government servant placing reliance on a document which may not have been disclosed to him or the copy whereof may not have been supplied to him during the enquiry when demanded, that would contravene principles of natural justice rendering the enquiry, and the consequential order of punishment illegal and void. These principles are well settled by a catena of decisions of this Court. We need not refer to them. However, it is not necessary that each and every document must be supplied to the delinquent government servant facing the charges, instead only material and relevant documents are necessary to be supplied to him. If a document even though mentioned in the memo of charges is not relevant to the charges or if its is not referred to or relied upon by the enquiry officer or the punishing authority in holding the charges proved against the government servant, no exception can be taken to the validity of the proceedings or the orders. If the document is not used against the party charged the ground of violation of principles of natural justice cannot successfully be raised. The violation of principles of natural justice arises only when a document, copy of which may not have been supplied to the party charged when demanded is used in recording finding of guilt against him. On a careful consideration of the authorities cited on behalf of the appellant, we find that the obligation to supply copies of a document is confined only to material and relevant documents and the enquiry would be vitiated only if the non supply of material and relevant documents when demanded may have caused prejudice to the delinquent officer. (para 4)
23. As per the law laid down by the Honble Apex Court in Union of India & Ors. vs. Upendra Singh: (1994) 3 SCC 356, this Tribunal cannot undertake the process of re-appreciating the evidence adduced in a disciplinary enquiry, and cannot go into the correctness or the truth of the charges, by putting itself in the shoes of either the Enquiry Officer, or of the Disciplinary Authority, or of the Appellate Authority. In his book on Administrative Law, at page 339, Sir William Wade has summarized the powers of judicial review as follows:-
The doctrine that the powers must be exercised reasonably has to be reconciled with no less important doctrine that the Court must not usurp the discretion of the public authority which Parliament appointed to take the decision within the bounds of legal reasonableness is the area in which the deciding authority has genuinely free discretion. If it passes those bounds, it acts ultra vires. The Court must, therefore, resist the temptation to draw the bounds too tightly, merely according to its own opinion..If the decision is within the confines of reasonableness, it is no part of the Courts function to look further into its merits.
24. In M/s Apparel Export Promotion Council Vs. A.K. Chopra : AIR 1999 SC 625, the Honble Apex Court has held that the adequacy or inadequacy of the evidence is not permitted to be canvassed before the High Court (and, by extrapolation, before this Tribunal), since the High Court (or this Tribunal) does not sit as an Appellate Authority over the factual findings recorded during the departmental proceedings, while exercising the power of judicial review. It was further laid down by the Honble Apex Court that the High Court cannot normally speaking substitute its own conclusion with regard to the guilt of the delinquent, for that of the departmental authorities. It was further laid down that judicial review is not directed against the decision of the administrative authorities, but is confined to the examination of the decision-making process only.
25. In the case of Chief Constable of the North Wales Police vs. Evans : (1982) 3 ALL E.R. 141, Lord Haltom observed as follows:-
The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches, on a matter which it is authorized by law to decide for itself, a conclusion which is correct in the eyes of the Court.
26. In the case of Union of India vs. Sardar Bahadur : (1972) 4 SCC 618, it was held by the Honble Apex Court that it was not the function of the High court to review the materials and to arrive at an independent finding on the materials. If the enquiry has been properly held, the question of adequacy or reliability of the evidence cannot be canvassed before the High Court (and, by extrapolation, before this Tribunal also).
27. The same view has also been reiterated by the Honble Apex Court in the State Bank of India vs. Ram Lal Bhaskar & Anr. : 2012 (1) AISLJ 108 Full Bench judgment, stating in Para-8 as follows:-
8. Thus, in a proceeding under Article 226 of the Constitution, the High Court does not sit as an appellate authority over the findings of the disciplinary authority and so long as the findings of the disciplinary authority are supported by some evidence the High Court does not re-appreciate the evidence and come to a different and independent finding on the evidence. This position of law has been reiterated in several decisions by this Court which we need not refer to, and yet by the impugned judgment the High Court has re-appreciated the evidence and arrived at the conclusion that the findings recorded by the enquiry officer are not substantiated by any material on record and the allegations leveled against the respondent no.1 do not constitute any misconduct and that the respondent no.1 was not guilty of any misconduct.
23. In the light of the discussion of the case law as cited above, it is clear that the Inquiry officer can decide on the relevance of the information sought for, and allow only the relevant information to be brought on record, and disallow the documents, which may have been sought by the delinquent Government official only with a purpose to delay the process of the conduct of Departmental Enquiry, by way of adopting dilatory tactics before the Inquiry Officer. Therefore the second issue is also decided accordingly, and we find no merit in the relief as sought for in Para 8 (ii) of the O.A.
24. In Para 8(iii) of the OA, the applicant has prayed to declare the provisions of Standing Order No.125/2008 as ultra vires and being contrary to Rule-12 of Delhi Police (Punishment & Appeal) Rules, 1980. However, the respondents have through Annexure R-1 (page-196 & 197 of the paper-book) produced the clarification dated 13.10.2010 issued clarifying the provisions of the Standing Order No.125/08 and Circular No.1342-1408/RB/PHQ dated 22.09.2009. We do not find any merit in this prayer of the applicant also since both in the instructions as contained in the Standing Order No.125/08, and the clarification issued on 13.10.2010 through Annexure R-1 filed in the present proceedings, we find that they have mainly dealt with enquiry proceedings as ordered under Rule-16 of the Delhi Police (Punishment & Appeal) Rules, 1980, and at the very beginning, in the Introduction portion of the Standing Order No.125/08, it has been stated as follows:-STANDING ORDER NO.125/2008
CONDUCTING OF DEPARTMENTAL ENQUIRIES INTRODUCTION
1. DEPARTMENTAL ENQUIRIES ARE CONDUCTED AS UNDER:
(a)xxxxxxxx(Not reproduced here)
(b)All these proceedings are quasi-judicial in nature and, therefore, require that Enquiry Officer must be judicious, fair and unbiased. The rules mentioned above have to be kept in mind carefully along with Article-311 of the Constitution of India by all the disciplinary authorities to ensure that procedure and instructions/circulars issued on the subject matter mentioned above are followed meticulously. Any failure/lapse to strictly adhere to the procedure, either wilfully or thorough gross negligence may vitiate the entire departmental proceedings rendering them null and void.
The whole purpose behind Rule-16 of the Delhi Police (Punishment & Appeal) Rules, 1980, to hold enquiry, is to arrive at the truth regarding the alleged misconduct for the purpose of punishing the delinquent without violating the principles of natural justice. The scope of rules of natural justice is The rules of natural justice require that a party should have the opportunity of adducing all relevant evidence on which he relies.
The words a party include both the prosecution as well as the charged officer (delinquent). Hence enquiry officer and disciplinary authority should follow the five main ingredients while conducting Departmental inquiry as given below:-
i) to issue Summary of allegations/charge: it should be specific so as to meet the same by the delinquent;
ii) to supply documents/material for enquiry;
iii) to examine the prosecution witnesses in the presence of the delinquent and to afford opportunity to the delinquent to cross-examine them;
iv) to enable him to examine his own witnesses;
not to rely upon any material which is not party of the enquiry.
25. Rest of the Standing Order is not being reproduced here.
26. It may be observed here that, as clarified by this Tribunal in OA No.1147/2012 Shri Sandeep vs. Commissioner of Police & Anr. decided on 13.03.2013, the scope of Rule-12 of Delhi Police (Punishment and Appeal) Rules, 1980 has been examined and it has been observed as follows:-
We note that in terms of Rule 12 of Delhi Police (Punishment and Appeal) Rules, 1980 when a police officer has been tried and acquitted by a criminal court, he is not punishable departmentally on the same charge or on a different charge upon the evidence cited in a criminal case, whether actually, led or not, unless criminal charge failed in the opinion of the Court, or the Deputy Commissioner of Police, the prosecution witnesses have been won over, or the court has held in its judgment that an offence was actually committed and that suspicion rests upon the police officer concerned or evidence cited in the criminal case discloses facts unconnected with the charge before the court which justify departmental proceedings on a different charge or additional evidence for departmental proceedings is available. Aforementioned situation only guide the concerned authority to take a view whether departmental proceedings against a Police Officer who is acquitted in a criminal trial should be initiated or not. Rule 12 of said Rule read as under:-
12. Action following judicial acquittal:- 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 unless:
(a) the criminal charge has failed on technical grounds, or
(b) in the opinion of the court, or on the Deputy Commissioner of Police the prosecution witnesses have been won over; or ( c) the court has held in its judgment that an offence was actually committed and that suspicion rests upon the police officer concerned; or
(d) the evidence cited in the criminal case discloses facts unconnected with the charge before the court which justify departmental proceedings on a different charge; or
(e) additional evidence for departmental proceedings is available.
From the aforementioned it can also be seen that even when a police official is acquitted in a criminal trial, the rule envisages/initiation of disciplinary action against him and consequential penalty in certain circumstances. In other words, even a serving police official who is acquitted from a criminal charge can be shown the door and made to go out of service if in the departmental proceedings initiated in terms of the aforementioned rule, he is found guilty. Since the penalty imposed on a police official in the proceeding initiated in terms of the aforementioned Rule 12 entails civil consequences and castes a stigma on a serving police official, before imposition of any penalty upon him, principles of natural justice must be adhered to and a detailed enquiry is held. The situation of a candidate who is selected for appointment in Delhi Police but whose candidature on account of his implication in a criminal case wherein he stands finally acquitted is cancelled may be compared with a police official who is dealt with in terms of Rule 12 of Delhi Police (P&A) Rules, 1980. Non appointment of a selected person on account of alleged involvement in a criminal case not only entails civil consequences, but also reflects adversely on his character. In the circumstances though he may not be entitled to an opportunity to defend himself in the manner in which a serving police officer is afforded such opportunity, but the principles of natural justice should also be followed in his case to the extent possible, by affording him an opportunity to have his say before cancellation of his appointment. Although the Standing Order No. 398/2010 provides for a Screening Committee and assessment of the suitability of a candidate involved in a criminal case though acquitted, by such a Committee, it does not indicate the modalities to be adopted by such a committee in arriving at its decision. Thus, in different judgments the Honble Delhi High Court had to indicate the modus operandi for guidance of the employer for taking a view regarding suitability of a candidate in a situation where he is implicated but later on acquitted in a criminal case.
27. In view of the above discussion of the law, since the departmental proceedings in the instant case have been initiated under Rule 16 of the relevant Delhi Police (Punishment and Appeal) Rules, 1980, following the view taken by the Full Bench in Sukhdev Singhs case (supra), we find no merit in the prayer at Para 8(iii) also.
28. The OA is, therefore, found devoid of any merit, and is accordingly dismissed. But there shall be no order as to costs.
(A.K. Bhardwaj) (Sudhir Kumar) Member (J) Member (A) cc.