Central Administrative Tribunal - Delhi
Subhash Chander S/O Mr. Vaishno Dutt vs The Commissioner Of Police on 28 February, 2014
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.2702/2012 Order reserved on 13th February 2014 Order pronounced on 28th February 2014 Honble Mr. A.K. Bhardwaj, Member (J) Honble Mr. P.K. Basu, Member (A) Subhash Chander s/o Mr. Vaishno Dutt r/o Chak Jarala PO Tehsil Bishnaha Distt. Jammu ..Applicant (By Advocate: Mr. Ajesh Luthra) Versus 1. The Commissioner of Police PHQ, MSO Building IP Estate, New Delhi 2. The Joint Commissioner of Police (Security) (PM) Vinay Marg, New Delhi ..Respondents (By Advocate: Ms. Pritma K. Gupta) O R D E R
Mr. A.K. Bhardwaj:
The applicant was enlisted in Delhi Police as Constable (Executive) on 21.11.1988 (afternoon). While posted in 8th Bn. DAP, he proceeded on 6+9 days casual leave vide DD No.53 at 2.15 PM on 31.3.1998 on the ground that he intended to go to his native village in Jammu and Kashmir as his mother was seriously ill. On 1.4.1998 he indulged himself in criminal activities and was arrested in case FIR No.118/98 under Sections 384/511 IPC at PS Delhi Cantt. New Delhi. As per the contents of FIR, on 1.4.1998 a foreigner was going to IGI Airport in TSR No. DL-1R-3177 and when it reached Gurgaon Road Parade Road T-point, the same was stopped by the applicant who asked the foreigner to show his passport. After seeing the passport, he asked the foreigner if he had any foreign currency with him. On his refusal the applicant attempted to extort money from him. In the meantime, the TSR driver succeeded in escaping from the clutches of Constable and dropped the foreigner at IGI Airport. While returning from IGI Airport, the TSR Driver, Mr. Subhash Chand s/o Mr. Bhaiya Lal r/o Servant Quarter No.50, Pratap Chowk, Delhi Cantt, New Delhi came to know that the person who had tried to extort the money from the foreigner was a Constable, as such he reported the matter to the local police and accordingly the aforementioned case was registered against the applicant. The applicant was also placed under suspension vide DD No.34-A dated 13.5.1994, PS Delhi Cantt., approved by the DCP/ South-West District, New Delhi vide office order No.2660-2675/HAP-II (SWD) dated 26.5.1994 and a departmental inquiry was also initiated against him by DCP/South-West District vide order No.2823-35/HAP-II (SWD) dated 7.6.1994 on the allegation that while posted at PS Delhi Cantt. he was detailed for picket duty on the night of 12/13.5.1994 at Gurgaon Road Picket at about 2.20 AM, he stopped one John Hall of USA while he was going to IGI Airport in a TSR, checked the belongings of the foreign national, harassed him unnecessarily and also took his watch as gift, which was reportedly returned to him on intervention of the local police at IGI Airport and Delhi Cantt. The applicant was also arrested in a criminal case FIR No.305/94 under Sections 363/366/342/ 376/511 /34 IPC, PS Vasant Kunj on 18.11.1994 and was deemed under suspension w.e.f. 18.11.1994 by DCP/South-West District vide office order No.7420-7440-A-II (SWD) dated 9.12.1994. In view of the aforementioned activities, the disciplinary authority passed the order dated 6.4.1998 dismissing him from service. For easy reference, relevant excerpt of the said order is reproduced as under:-
Now, whereas Constable Subhash Chander No. 9202/DAP has been placed under suspension w.e.f. 1.4.98 vide this office order No.12001-35/HAP/8th Bn. DAP dated 2.4.98. The investigation as well as the departmental enquiry will take a long period to prove his guilt. His continuance in the police force therefore poses a public hazard. His conduct in service will only encourage him to continue the way he is taking into account his previous conduct not once but twice it will be difficult to even give any benefit of doubt in the present instance. A person who is supposed to protect the life and property of others, if turns out to be a criminal, he damages the image of the Police Department in the eyes of the public to an extent beyond repair affecting the credibility of a police force.
2. On his acquittal from the charges under Sections 394/511 IPC by the Court of Mr. Sumit Dass, Metropolitan Magistrate-01, Dwarka Courts, vide order dated 3.8.2011, the applicant made a representation to the Special Commissioner of Police (AP), New Delhi (Annexure A-4) requesting him for his reinstatement in service. In paragraph 4.13 of the Original Application, it has been stated that the applicant has also been acquitted of the other offences in the criminal case FIR No.305/94 PS Vasant Kunj. In the present Original Application filed by him, the applicant has questioned the orders passed by the respondents dismissing him from service and rejecting his representation with a view that the appeal had already been rejected by the appellate authority. The grounds raised in the Original Application read as under:-
A. Because the impugned actions and orders of the respondent are absolutely illegal, arbitrary, unjust unfounded and violative of principles of natural justice.
B. Because the applicant has been wrongly dismissed. The dismissal order is incomplete violation of the provisions of Constitution of India and various judicial pronouncements.
C. Because now when the applicants honour has been vindicated and he stands acquitted, the foundation of penalty is no more in existence, hence the applicant is entitled for reinstatement. The acquittal order has given raise to a fresh cause of action.
D. Because the applicants claim is covered by various judicial pronouncements on the subject.
E. Because in Sukhdev Singhs case a Full Bench of this Honble Tribunal has held that upon acquittal of a police employee in the criminal case the penalty imposed by the department prior to acquittal, is required to be revisited. Likewise, the penalty imposed without holding a regular DE is required to be revisited upon acquittal.
F. Because the impugned orders/actions of the respondents are otherwise also illegal and liable to be set aside.
3. During the course of arguments, Mr. Ajesh Luthra, learned counsel for applicant submitted that the respondents were not justified in resorting to the provisions of Article 311 (2) (b) of the Constitution to dismiss the applicant from service. According to him, the magnitude of misconduct cannot be a ground to dispense with the inquiry proceedings.
4. Relying upon the judgment of the Honble Supreme Court in Union of India & another v. Tulsiram Patel, 1985 (2) SLJ 145 (SC), Mr. Luthra submitted that the condition precedent for the application of Article 311 (2) (b) of the Constitution is the satisfaction of the disciplinary authority that it is not reasonably practicable to hold any inquiry.
5. Making reference to the order passed by the Full Bench of this Tribunal in Sukhdev Singh & another v. Government of NCT of Delhi & others (O.A. No.2816/2008) dated 18.2.2011, learned counsel for applicant submitted that though the disciplinary proceedings can resort to criminal and disciplinary proceedings against a charged official simultaneously but if the punishment imposed in departmental proceedings is earlier and a verdict of the criminal court is that of acquittal and the circumstances are such as envisaged in Rule 12 of Delhi Police (Punishment & Appeal) Rules, the order passed in the departmental proceedings will have to be revisited. Mr. Luthra also placed reliance upon the following decisions of this Tribunal:
i) Ex. Constable Stender Kumar v. Union of India & others (O.A.No.51/2001) decided on 25.10.2011,
ii) Deepak Dubey v. The Commissioner of Police, Delhi Police Headquarters & another, 2007 (3) AISLJ 338,
iii) Ex. Const. Harvir Singh v. Union of India & others (O.A.No.1471/1998) decided on 26.5.2000; and
iv) Deepak Kumar v. Commissioner of Police & others (O.A. No.1473/2007) decided on 21.11.2007.
6. On the other hand, Mrs. Pritma K. Gupta, learned counsel for respondents submitted that the dismissal of the applicant is not solely based on the involvement in the FIR No.118/98 under Sections 384/511 IPC PS Delhi Cantt., New Delhi, as the applicant was earlier involved / arrested in criminal case FIR No.305/94 under Sections 363/366/ 342/376/511/34 IPC PS Vasant Kunj on 18.11.1994 and was deemed under suspension w.e.f. 18.11.1994 vide DCP/South West District office order dated 9.12.1994. The applicant was also placed under suspension vide DD No.34-A dated 13.5.1994, PS Delhi Cantt. In paragraph 4.11 of the reply it is stated that the sole witness relied upon by the prosecution turned hostile. The said paragraph reads as under:-
4.13 That the contents of para No.413 are admitted to the extent that a DE which was initiated against him vide order dated 07.06.1994 on the allegations that while posted at PS Delhi Cantt., he was detailed for picket duty on the night of 12/13.5.1994 at Gurgaon Road Picket. At about 2.20 a.m. the appellant stopped one John Hall of USA while the foreigner was going to IGI Airport, in a TSR. The appellant checked the belongings of the foreign national and harassed him unnecessarily and also took his watch as given which was reportedly returned to the foreigner on the intervention of the local police of IGI Airport and Delhi Cantt. The said DE was kept-in-abeyance due to his dismissal from service under article 311 (2)(b) of the Constitution of India vide order dated 06.04.1998.
7. We heard the learned counsels for the parties and perused the records.
8. In Rule 12 of Delhi Police (Punishment & Appeal) Rules, 1980, it is provided that 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.
9. As far as the plea of re-instatement on the basis of his acquittal is concerned, in State of West Bengal & others v. Sankar Ghosh, (Civil Appeal No.10729/2010) decided on 28.11.2013, it has been held by the Apex Court that a government servant does not acquire any right to automatic reinstatement on acquittal in criminal case. Relevant excerpt of the said judgment reads as under:-
16. We indicate that the respondent could not lay his hand to any rule or regulation applicable to the Police Force stating that once an employee has been acquitted by a Criminal Court, as a matter of right, he should be reinstated in service, despite all the disciplinary proceedings. In otherwise there is no rule of automatic reinstatement on acquittal by a Criminal Court even though the charges levelled against the delinquent before the Enquiry Officer as well as the Criminal Court are the same. On this aspect, reference may be made to para 27 of the judgment in S. Samuthiram (supra), which reads as under:-
27. We have also come across cases where the service rules provide that on registration of a criminal case, an employee can be kept under suspension and on acquittal by the criminal court, he be reinstated. In such cases, the reinstatement is automatic. There may be cases where the service rules provide that in spite of domestic enquiry, if the criminal court acquits an employee honourably, he could be reinstated. In other words, the issue whether an employee has to be reinstated in service or not depends upon the question whether the service rules contain any such provision for reinstatement and not as a matter of right. Such provisions are absent in the Tamil Nadu Service Rules.
17. Regulation 4 of Chapter 19 of the Police Regulations of Calcutta, 1968, which is applicable to the case in hand, specifically provides that acquittal or discharge in a criminal proceeding shall not be a bar to award punishment in a departmental proceeding in respect of the same cause or matter. The said Regulation is extracted below for easy reference:
4. Discharge or acquittal not a bar to departmental punishment. An order of discharge or acquittal of a Police Officer shall not be a bar to the award of departmental punishment to that officer in respect of the same cause or matter.
18. Above rule indicates that even if there is identity of charges levelled against the respondent before the Criminal Court as well as before the Enquiry Officer, an order of discharge or acquittal of a police officer by a Criminal Court shall not be a bar to the award of the departmental punishment. The Tribunal as well as the High Court have not considered the above-mentioned provision and have committed a mistake in holding that since the respondent was acquitted by a Criminal Court of the same charges, reinstatement was automatic. We find it difficult to support the finding recorded by the Tribunal which was confirmed by the High Court. We, therefore, allow the appeal and set aside the order of the Tribunal, which was affirmed by the High Court. However, there will be no order as to costs.
10. Nevertheless in the case of Sukhdev Singhs case (supra), the Full Bench of this Tribunal could interpret the Rule 12 of the Delhi Police (Punishment & Appeal) Rules, 1980 in such a way that when simultaneous criminal and disciplinary action is taken against a member of the Delhi Police and the order of the disciplinary authority is of a date prior to the date of the order of trial court in a criminal case, on acquittal, the penalty order need to be revisited subject to the conditions mentioned in Rule 12 (ibid).
11. As far as the plea of violation of principles of natural justice and un-called for resortion to Article 311 (2) (b) of the Constitution raised on behalf of the applicant is concerned, we find that when the order of dismissal was passed in the year 1988 and the applicant had his remedy to question the same within one year of the date of the order or after expiry of six months from the date of representation thereagainst required to be made under Section 20 of Administrative Tribunals Act, 1985, the challenge to the penalty order on said ground would be barred by limitation. Nevertheless in view of the judgment of the Full Bench of this Tribunal in Sukhdev Singhs case (supra), the applicant got a cause of action to seek assessment to revisit the penalty order on his acquittal. Though we find that from the charges of criminal case registered vide FIR No.118/98 under Sections 384/511 IPC the applicant was acquitted on 3.8.2011, but it is not clear that when was he acquitted from the charges in the criminal case registered vide FIR No.305/94 under Sections 363/366/342/376/511/34 IPC, PS Vasant Kunj on 18.11.1994. In paragraph 4.13 of the Original Application only a bald statement has been made by the applicant that he has since been acquitted from the charges in FIR No.305/94 but it is not stated that on what date he was so acquitted. If the acquittal of the applicant in the criminal case is more than two and a half years old as on 13.8.2012, i.e. the date of filing the present Original Application, the O.A. would be barred by limitation for both the causes, i.e. challenge to the order of dismissal as also the revisiting of the same under Rule 12 (ibid). If such order is passed within two and a half years of the date of filing of the present Original Application, the competent authority need to take a view in terms of Section 12 (ibid).
12. In view of the aforementioned, we decline to interfere with the impugned order of dismissal for the reason that the cause of action had accrued to the applicant to challenge the same as also the order of appellate authority on 27.9.2000 and the present Original Application is filed after almost 13 years and is barred by limitation. However, in the event the acquittal of the applicant from the criminal case registered vide FIR No.305/94 under Sections 363/366/342/376 /511/34 IPC, PS Vasant Kunj was within two and a half years preceding the filing of the present application, the competent authority would take a view whether the penalty order need to be revisited in terms of the provisions of Section 12 of the Delhi Police (Punishment & Appeal) Rules, 1980 and the judgment of the Full Bench of this Tribunal in Sukhdev Singhs case (supra), within a period of three months from the date of receipt of a copy of this order.
13. Subject to aforesaid, the Original Application is disposed of. No costs.
( P. K. Basu ) ( A.K. Bhardwaj ) Member (A) Member (J) /sunil/