Central Administrative Tribunal - Delhi
Sukhdev Singh vs Government Of Nct Of Delhi Through on 18 February, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI Original Application No.2816 of 2008 Misc. Application Nos.2100/2008, 2673/2010 This the 18th day of February, 2011 FULL BENCH HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE SHRI L. K. JOSHI, VICE-CHAIRMAN (A) HONBLE DR. DHARAM PAUL SHARMA, MEMBER (J) 1. Sukhdev Singh, ASI in Delhi Police, R/o J/1.53, Chanakya Palace, C-1, Janak Puri, New Delhi-59. 2. Mahender Singh, HC in Delhi Police, R/o 201, Type-II, Pocket-A, Sector 13, Dwarka, New Delhi. Applicants ( By Shri Anil Singal, Advocate ) Versus 1. Government of NCT of Delhi through Commissioner of Police, Police Headquarters, IP Estate, New Delhi. 2. Joint Commissioner of Police, Southern Range, Police Headquarters, IP Estate, New Delhi. 3. DCP (West District), PS Rajouri Gargen, New Delhi. 4. ACP Radhey Shyam (E.O.), D.E. Cell, Police Bhawan, Asif Ali Road, Delhi. Respondents ( By Shri Padma Kumar S., for Ms. Jyoti Singh, Advocate ) O R D E R Justice V. K. Bali, Chairman:
Consistent view of the Honble Supreme Court starting from its judgment in Delhi Cloth and General Mills Ltd. v Kushal Bhan [AIR 1960 SC 806] till date, is that departmental and criminal proceedings, even though based upon the same allegations, can be held simultaneously, with the only exception that where there are complicated questions of law and facts involved, the departmental proceedings need to be put on hold awaiting decision of the criminal case. As to whether the questions of law and facts are complicated would depend upon the facts of each case, and in that regard no straitjacket formula is available. Recognizing this law as settled, but taking into consideration the provisions contained in the Delhi Police (Punishment and Appeal) Rules, 1980 (hereinafter to be referred as the Rules of 1980), a Division Bench of this Tribunal has referred the instant Original Application to the larger Bench. The operative part of the long order passed by the Division Bench reads as follows:
51. However, the issue pertaining to the impact of rule 11 and Rule 12 as well as Rule 15 having not been considered either by the Tribunal or by the High Court of Delhi, it is a situation where we do not want any conflict on such an important legal issue and to have an authoritative pronouncement on the subject as to not only the vires of Standing Order No.125/2008 but also interpretation of Rule 11, Rule 12 and Rule 15 of the Delhi Police (Punishment & Appeal) Refer this matter before the Honble Chairman on administrative side to constitute a Full Bench to settle this issue as per law. When this matter came up before the Full Bench on 24.9.2010, the learned counsel representing the respondents urged that inasmuch as, there were no conflicting views on the issue before the Division Bench, and when the decision of a co-ordinate Bench in the case of Inspr. Rameshwar Khatri & others v Government of NCT of Delhi through Commissioner of Police & others (OA No.3519/2009), decided on 10.12.2009, holding that criminal and departmental proceedings can go on simultaneously, and which decision has since been upheld by the Honble High Court of Delhi, there was no need to refer the matter to the Full Bench, particularly when the co-ordinate Bench in the case aforesaid had made no discussion as regards rules 11, 12 and 15 of the Rules of 1980, and if the rules aforesaid were relevant to the decision, the Division Bench was free to deal as regards applicability of the rules, and there would have been no need to make reference to the larger Bench. On the plea aforesaid, we inter alia observed as follows:
2. The counsel, prima facie, appear to be right. However, it is not in dispute that the Division Bench could have yet referred the matter to the larger Bench to consider applicability of rules 11, 12 and 15 of the Rules of 1980, more particularly rule 12 thereof, particularly when the issue had since been decided by this Tribunal and affirmed by the High Court, and, therefore, propriety required, if a different view was to be taken, to refer the matter to the larger Bench. There would be no need to send the matter back to the Division Bench inasmuch as, if the matter could be referred to the larger Bench, the question to be answered can be re-framed. It would be an exercise in futility to send the matter back to the Division Bench, which may again refer it to the larger Bench by re-framing the question. In the circumstances as mentioned above, we re-fame the question to be answered by the Full Bench as follows:
Whether in view of the provisions contained in rule 12 of the Delhi Police (Punishment and Appeal) Rules, 1980, which specifically stipulates that a police officer shall be proceeded against in a departmental enquiry only in the circumstances mentioned in clauses (a) to (e) of the said rule, would it be permissible to have simultaneous departmental enquiry along with criminal trial; and Whether in view of the provisions contained in rule 12, departmental proceedings could go on but final orders should await the decision of the criminal court. We may mention at the very outset that in OA No.3519/2009 in the matter of Rameshwar Khatri & others (supra), the Division Bench was dealing with case of Inspector, ASI, Head Constables and Constables in Delhi Police. While referring to number of judgments we held that criminal and departmental proceedings can go on simultaneously. Even though, the case law was referred to, admittedly there was no reference to the relevant provisions of the Rules of 1980, nor naturally there was any discussion on the same. Surely, if no point based upon the rules aforesaid was raised, there would be no discussion and opinion of the Bench. It is also true that in none of the judicial precedents on which we placed reliance or on which reliance may have been placed even now before the Full Bench, there is any discussion and opinion on the issue based upon provisions of the Rules of 1980. In the view of the learned counsel representing the applicants, the relevant provisions of the Rules aforesaid would be rules 11, 12 and 15.
2. Before we may, however, reproduce rules as mentioned above, we may briefly touch upon the facts of the case. Whereas, the first applicant before us is an ASI, the second applicant is a Head Constable in Delhi Police. They have jointly filed this Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking quashing of the departmental enquiry, the summary of allegations and orders passed on their representations, and in the alternative, to keep the enquiry in abeyance till the criminal trial proceeds up to the stage of defence by the applicants, or at least to defer the cross examination of the complainant Smt. Kusum Sehgal before the concerned CBI Court. The applicants, it appears, are facing the departmental enquiry and a criminal case on the allegations that while posted at PS Hari Nagar, a complaint from one Shri Sanjay Grover was received at the police station on 7.5.2007, wherein the complainant alleged that his business partners Anil Khanna and Leelender Khanna had cheated him of `1.67 lakhs. The said complaint was marked to the applicant ASI Sukhdev Singh for enquiry. On 23.5.2007, Smt. Kusum Sehgal submitted a complaint to CBI authorities alleging that Leelender Khanna was her family friend and was also using her mobile phone, and that on 8/9.5.2007 a call was received by her asking her to come to PS Hari Nagar. She accordingly reached there, where she was informed by the SHO that Shri Grover had submitted a complaint that she had threatened to kill him, and she was directed to meet the applicants. She further alleged that applicant Mahender Singh took her in his room and demanded a sum of `40,000/- for not registering a criminal case against her, but she refused to pay, and that thereafter frequent threatening calls were received by her from the applicants that in case she did not pay the bribe, she would be arrested in the complaint filed by Grover. On the basis of this, a case vide No.RC-DAI-2007-A-0018 dated 23.5.2007 u/s 120-B IPC and Section 7 Prevention of Corruption Act, 1988 PS ACP/CBI came to be registered by CBI, and a trap was laid, wherein the applicants were caught red-handed while demanding and accepting bribe of `.30,000/- from Smt. Kusum Sehgal. The amount was recovered from the possession of applicant Mahender Singh, which was taken in the presence of applicant Sukhdev Singh. This resulted in an order passed by the disciplinary authority on 1.6.2007 dispensing with the enquiry and dismissing the applicants from service under clause (b) of Article 311 (2) of the Constitution of India. However, on appeal, on the ground that the disciplinary authority had pre-judged the conviction of the applicants without completion of the trial, the applicants were reinstated in service vide order dated 23.8.2008, without prejudice to the disciplinary proceedings. The trial, in the meanwhile proceeded where Smt. Kusum Sehgal was examined and cross-examined. The plea raised by the applicants is that if the prosecution may examine the relevant witnesses, whom the applicants shall have to cross-examine, the defence of the applicants shall be disclosed, which would be prejudicial to them in the departmental enquiry. On law, the contention of the applicants canvassed through their counsel is that the Rules of 1980 would contain an express or implied bar for holding simultaneous proceedings. We may now reproduce rules 11, 12 and 15 of the Rules of 1980. The same read as follows:
11. Punishment on judicial conviction.(1) When a report is received from an official source, e.g. a court or the prosecution agency, that a subordinate rank has been convicted in a criminal court of an offence, involving moral turpitude or on charge of disorderly conduct in a state of drunkenness or in any criminal case, the disciplinary authority shall consider the nature and gravity of the offence and if in its opinion that the offence is such as would render further retention of the convicted police officer in service, prima facie undesirable, it may forthwith make an order dismissing or removing him from service without calling upon him to show against the proposed action provided that no such order shall be passed till such time the result of the first appeal that may have been filed by such police officer is known.
(2) If such police officer is acquitted on second appeal or revision, he shall be reinstated in service from the date of dismissal or removal and may be proceeded against departmentally.
(3) In cases where the dismissal or removal from service of the convicted police officer is not considered necessary, the disciplinary authority may examine the judgment and take such departmental action as it may deem proper.
(4) When a police officer is convicted judicially and consequently dismissed or removed from service, and it is desired to ensure that the officer dismissed or removed shall not be re-employed elsewhere, a full descriptive roll with particulars of punishments, shall be sent for publication in the Delhi Police Gazette. 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. 15. Preliminary enquiries. (1) A preliminary enquiry is a fact finding enquiry. Its purpose is (i) to establish the nature of default and identity of defaulter(s), (ii) to collect prosecution evidence, (iii) to judge quantum of default and (iv) to bring relevant documents on record to facilitate a regular departmental enquiry. In cases where specific information covering the above-mentioned points exists a Preliminary enquiry need not be held and Departmental enquiry may be ordered by the disciplinary authority straightway. In all other cases a preliminary enquiry shall normally precede a departmental enquiry.
(2) In cases in which a preliminary enquiry discloses the commission of a cognizable offence by a police officer of subordinate rank in his official relations with the public, departmental enquiry shall be ordered after obtaining prior approval of the Additional Commissioner of Police concerned as to whether a criminal case should be registered and investigated or a departmental enquiry should be held.
(3) The suspected police officer may or may not be present at a preliminary enquiry but when present he shall not cross-examine the witness. The file of preliminary enquiry shall not form part of the formal departmental record, but statements therefrom may be brought on record of the departmental proceedings when the witnesses are no longer available. There shall be no bar to the Enquiry Officer bringing on record any other documents from the file of the preliminary enquiry, if he considers it necessary after supplying copies to the accused officer. All statements recorded during the preliminary enquiry shall be signed by the person making them and attested by the enquiry officer.
3. Before we may take into consideration the rules as reproduced above, we may mention that if the rules can be interpreted to contain an express of implied bar for departmental proceedings when criminal prosecution may have also been launched, then the settled law that departmental and criminal proceedings can go on simultaneously may not be applicable. Such a situation as regards some the provisions of the Rules of 1980 came up for consideration before this Tribunal in OA No.544/2006 and connected cases in the matter of Brij Pal Singh & others v Government of NCT of Delhi & others, decided on 30.7.2007. In that regard, we may mention that this is also too well settled a proposition of law that conviction of an employee in a criminal case can lead to his dismissal from service on that ground alone. No departmental enquiry is required to be held in such a situation. There is no need to await decision of the appellate court if the order of conviction and sentence may have been challenged, and provisions of Article 311 (2) (a) of the Constitution can straightway be resorted to, as has been held by the Honble Supreme Court in Deputy Director of Collegiate Education (Administration), Madras v S. Nagoor Meera [AIR 1995 SC 1364] and in K. C. Sareen v CBI [(2001) 6 SCC 584]. Rule 11 (1) of the Rules of 1980, however, prescribes that when a subordinate rank has been convicted in a criminal court of an offence, involving moral turpitude or on charge of disorderly conduct in a state of drunkenness or in any criminal case, the disciplinary authority shall consider the nature and gravity of the offence, and if in its opinion the offence is such as would render further retention of the convicted police official in service, prima facie undesirable, it may forthwith make an order dismissing or removing him from service, provided that no such order shall be passed till such time the result of the first appeal that may have been filed by such police officer is known. Rule 11(1) has already been reproduced above. In view of the bar created by the exception provided in rule 11 for dismissal till such time the result of the first appeal is known, a question came to be mooted and decided by this Tribunal as to whether in view of the language employed in rule 11, the law as held by the Supreme Court in the cases referred to above would be applicable. The questions that thus came to be framed by this Tribunal for its answer read as follows:
(1) Whether the judgments in Deputy Director of Collegiate Education (Administration), Madras Vs. S. Nagoor Meera (AIR 1995 SC 1364) as well as K. C. Sareen Vs. CBI (2001 (6) SCC 584) could be taken as having set as defunct the operation of proviso to Rule 11(1) of the Delhi Police Rules, in view of Article 141 of the Constitution of India?
(2) Whether the action taken by the Commissioner as bona fide in public interest in issuing the impugned circular be upheld as legally as well as morally correct?
(3) Without deleting the rule from the Statute Book, whether the executive authority had the liberty to treat the rule as one not in existence? The Tribunal held that in view of bar as created in rule 11 for dismissing a police officer from service who may have been convicted in a criminal case till such time his appeal is decided, the general rule laid down by the Supreme Court, without consideration of such rule, would not be applicable. The judgment of the Tribunal was challenged before the High Court of Delhi in WP(C) No.1044/2008 and other connected cases, and the High court while upholding the decision of the Tribunal, dismissed the writ petition vide orders dated 4.12.2008. In view of the law laid down by this Tribunal and confirmed by the High Court, learned counsel representing the parties are ad idem that if there be indeed a bar for proceeding departmentally against a Delhi Police official who may also be facing criminal trial on the same allegations, the law laid down by the Supreme Court that simultaneous criminal and departmental proceedings can go on, would not be applicable. Whereas, the learned counsel representing the applicant would strenuously urge that an express or implied bar as regards holding of simultaneous criminal and departmental proceedings is contained in the rules referred to above, the learned counsel representing the respondents, with equal vehemence, would controvert the same. Rules 11 and 12 of the Rules of 1980 deal with judicial conviction and acquittal respectively. In view of provisions contained in rule 11(1), where a subordinate rank has been convicted in a criminal court of an offence involving moral turpitude or on charge of disorderly conduct in a state of drunkenness or in any criminal case, the disciplinary authority shall consider the nature and gravity of the offence and form its opinion whether the subordinate rank has to be retained in service. An order dismissing the subordinate rank from service can be passed in consideration of the gravity of the offence, but such an order, as mentioned above, cannot be passed till such time the result of the first appeal that may have been filed by such subordinate rank is known. If the order of dismissal has been passed under rule 11(1), which, as mentioned above, would be passed only when the first appeal is decided, but later, on second appeal or revision, the subordinate rank is acquitted, he shall have to be reinstated in service from the date of dismissal or removal from service. The department is, however, at liberty to proceed departmentally against him. On culmination of the departmental proceedings if the subordinate rank has been held guilty, then it shall further have to be seen whether it is a case of dismissal or removal from service or of inflicting any punishment lesser than that, as would be made out from sub-rules (2) (3) of rule 11. Insofar as sub-rule (4) of rule 11 is concerned, the same is not relevant for the controversy in issue. As per provisions contained in rule 12, when, however, a person may be acquitted by the criminal court, he cannot 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; the witnesses have been won over; despite acquittal, suspicion rests upon the police officer in the judgment itself; the evidence cited in the criminal case discloses facts unconnected with the charge before the court, which may justify departmental proceedings on a different charge; or additional evidence for departmental proceedings is available.
4. We do not find any express or implied bar forthcoming from the language employed in rules 11 and 12 for holding of simultaneous criminal and departmental proceedings. In fact, it appears that rules 11 and 12 cover a situation when till such time the criminal proceedings may culminate one way or the other, no decision has been taken to departmentally try the subordinate rank. Even though, as per settled law, simultaneous proceedings may be permissible, but it is not necessary to resort to both of them at the same time. As mentioned above, rules 11 and 12 would be applicable when in the first instance, a decision to criminally prosecute a subordinate rank has been taken, and at that stage no decision has been taken to proceed departmentally against him. What we have said above would be corroborated from the fact that be it the conditions prevalent in rule 11 or rule 12, in either case, after culmination of the criminal trial, departmental proceedings have been envisaged. In view of provisions contained in sub-rule (2) of rule 11, even on acquittal of a subordinate rank in second appeal or revision, when he may have to be reinstated in service from the date of dismissal or removal from service, he can still be proceeded against departmentally. This provision, in our view, would cover the situation where it may not be a case of clean acquittal, or the department may be of the view that even though as per the standard of proof as required in criminal law, the subordinate rank may have earned an acquittal, but as per the standard of proof required in departmental proceedings, there is evidence enough to return a finding of guilt against him. Further departmental proceedings are permissible even on conviction, when a subordinate rank may have been convicted, which can be, even though not specified, of ordering recovery or even of divesting him of the awards that may have been given to him, as has been recently proposed in the case of a high ranking police officer in the State of Haryana, which we all know, but it may not be appropriate to mention his name. It would also be, as envisaged in sub-rule (4) of rule 11, to pass an order debarring him from any re-employment. What we are primarily mentioning is that provisions contained in rule 11(1) are applicable when decision has been taken only at that stage to criminally prosecute a subordinate rank, or in other words, no decision has been taken to resort to simultaneous proceedings. So would be true as regards the provisions contained in rule 12, which give ample powers to the authorities to proceed against a subordinate rank even after his acquittal, but not to do so, on specified grounds mentioned therein. Provisions of rule 11 and 12 thus, operate when decision at the relevant time, when the offence is committed, is to resort to criminal proceedings only, but that, in our view, would not automatically bar simultaneous proceedings. Insofar as, rule 15 is concerned, no arguments were advanced that the provisions contained therein would create any express or implied bar for resorting to simultaneous criminal and departmental proceedings. We may, however, deal with the provisions contained in rule 15, which deals with preliminary enquiries, as a prelude to holding of regular departmental enquiry. The provisions contained in the rule would unmistakably show that it is not necessary to hold a preliminary enquiry. The same is, however, resorted to when the allegations made against a subordinate rank are uncertain. The purpose of preliminary enquiry is to establish the nature of default and identity of the defaulter(s), to collect prosecution evidence, to judge the quantum or default, and to bring relevant documents on record to facilitate a regular departmental enquiry. It is specifically mentioned in the rule that in cases where specific information covering the above mentioned points exists, a preliminary enquiry need not be held and departmental enquiry may be ordered by the disciplinary authority straightway, and in all other cases a preliminary enquiry shall normally precede a departmental enquiry. From the language employed in rule 15, it is crystal clear that preliminary enquiry is ordered when the nature of default and identity of defaulters is uncertain, the department is not sure as to on what basis the allegations can be proved, and if proved, what should be the quantum of default. Insofar as rule 15(2) is concerned, that deals with such preliminary enquiries which may disclose commission of a cognizable offence by a police officer of subordinate rank. The provision is applicable only as regards offence which is cognizable having been committed by a subordinate rank in his official relations with the public. In that case only, prior approval is required of the Additional Commissioner of Police concerned as to whether a criminal case should be registered and investigated or a departmental enquiry should be held. We have already held in a Full Bench in OA No.94/2007 in the matter of HC Rohtash Singh v Government of NCT of Delhi & others, decided on 24.4.2008, that provisions of rule 15(2) do not bar simultaneous proceedings. The Rules of 1980 came into being in exercise of powers conferred by sub-sections (1) and (2) of Section 147 of the Delhi Police Act, 1978. Sub-section (1) of Section 147 of the Act aforesaid vests with the Administrator power to make rules for carrying out the purposes of the Act. By virtue of provisions contained in sub-section (2) the rules may be made for the following matters in particular, and without prejudice to the generality of the power mentioned in sub-section (1):
(a) recruitment to, and the pay, allowances and all other conditions of service of the members of, the Delhi police under clause (b) of section 5;
(b) the manner of publication, under sub-section (2) of section 17, by the Commissioner of Police, of the names of special police officers appointed under that section;
(c) awarding of any of the punishments referred to in sub-section (1) or sub-section (2) of section 21 to any police officer of subordinate rank;
(d) procedure for awarding punishments under section 22;
(e) form of Discharge Certificate under sub-section (8) of section 25;
(f) determination of the cost of employing additional police under sub-section (2) of section 38;
(g) manner of taking measurements and photographs under section 55 of a person against whom an order has been made under section 46, section 47 or section 48;
(h) manner of constituting Defence Societies under sub-section (1) of section 58;
(i) form of receipt to be given in respect of any article detained under section 62;
(j) the authority to whose satisfaction claims are to be established under sub-section (2) of section 69 and the form and manner in which claims may be made under that sub-section, the procedure for dealing with such claims and all other matters connected therewith under sub-section (3) of that section;
(k) payment to any police officer or division among two or more police officers the whole or any portion of any reward, forfeiture or penalty, under the proviso to section 132;
(l) any other matter which has to be, or may be, prescribed, or provided for by rules, under this Act. Clause (c) of sub-section (2) of Section 141 of the Act of 1978 deals with awarding of punishments referred to in sub-sections (1) and (2) of Section 21 to any police officer of subordinate rank. It is under this provision, it appears, the Rules of 1980 have been framed. Provisions contained in Section 21 of the Act of 1978 vest the Commissioner of Police, Additional Commissioner of Police, Deputy Commissioner of Police, Additional Deputy Commissioner of Police, Principal of the Police Training College or of the Police Training School or any other officer of equivalent rank, with the power to award to any police officer of subordinate rank any of the punishments mentioned therein. Sub-section (3) of Section 21 reads thus:
(3) Nothing in sub-section (1) or sub-section (2) shall affect any police officers liability for prosecution and punishment for any offence committed by him. From the above, it is clear that punishment to the officers of the rank of Inspector and below can be awarded by Deputy Commissioner of Police and above, meaning thereby that the Deputy Commissioner is the disciplinary authority for all the officers of the rank of Inspector and below. The Rules of 1980 apply to all the officers of the subordinate rank, i.e., from Constable to Inspector, as per rule 3 thereof. As per general law and specific provision contained in sub-section (3) of Section 21 of the Act of 1978, it is thus clear that if prosecution is ordered, departmental enquiry is not barred, and the converse of that is also true. It is thus clear that police officers covered under the Act and Rules can be prosecuted and departmentally tried simultaneously. The provisions of sub-rule (3) of rule 15 are not applicable in deciding the controversy in issue.
5. Provisions of rules 11, 12 and 15, in our considered view, contain no express or implied bar for holding simultaneous criminal and departmental proceedings. Having held so, the only problem that still stares everyone is that if the criminal and departmental proceedings are held simultaneously, and if the departmental proceedings may culminate before the verdict is announced in the criminal proceedings, and in case where the subordinate rank is held guilty in departmental proceedings and is acquitted in the criminal case, and it is a case of clean acquittal, and is not on any of the grounds as have been mentioned in rule 12, and, therefore, departmental proceedings may not be permissible, how the situation shall have to be tackled. A subordinate rank can urge for putting the departmental proceedings on hold by saying that such proceedings are not competent, if his acquittal may be clean and none of the grounds may be available for which he can be put to a departmental enquiry, what shall happen to the order of punishment that may have already been passed sequel to the departmental proceedings. It is urged by the learned counsel representing the applicants that there is a possibility of clean acquittal and in such a situation when there may be a bar for departmental proceedings, the same need to be put on hold. We have pondered over the issue and after giving our serious thoughts to the contentions raised by the learned counsel as noted above, find that once there is no bar for holding simultaneous criminal and departmental proceedings, the departmental proceedings cannot be put on hold, even though some solution to this problem has to be found out. What clearly emerges from the provisions contained in rule 11 is that when the acquittal is clean, like it is not on technical grounds etc., no departmental proceedings would be held when the same may not have commenced earlier, but where an order in departmental proceedings may have preceded the judgment of acquittal in the criminal case and in the departmental proceedings the subordinate rank may have been found guilty, the departmental proceedings shall have to be re-visited, as that is how only the provisions of rule 11 can be read harmoniously with the settled law on the issue. Provisions of rule 11 are peculiar to subordinate ranks in Delhi Police governed by the Rules of 1980, but the situation as covered under rule 11 has been a matter of debate and would be covered by judicial precedents. In Capt. M. Paul Anthony v Bharat Gold Mines Ltd. [(1999) 3 SCC 679], where also the question was as to whether departmental proceedings and the proceedings in the criminal case launched on the basis of same set of facts can be continued simultaneously, in para 34 the Supreme Court held as under:
34. There is yet another reason for discarding the whole of the case of the respondents. As pointed out earlier, the criminal case as also the departmental proceedings were based on identical set of facts, namely "the raid conducted at the appellant's residence and recovery of incriminating articles therefrom". The findings recorded by the enquiry officer, a copy of which has been placed before us, indicate that the charges framed against the appellant were sought to the proved by police officers and panch witnesses, who had raided the house of the appellant and had effected recovery. They were the only witnesses examined by the enquiry officer and the enquiry officer, relying upon their statements, came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case but the Court, on a consideration of the entire evidence, came to the conclusion that no search was conducted nor was any recovery made from the residence of the appellant. The whole case of the prosecution was thrown out and the appellant was acquitted. In this situation, therefore, where the appellant is acquitted by a judicial pronouncement with the finding that the "raid and recovery" at the residence of the appellant were not proved, it would be unjust, unfair and rather oppressive to allow the findings recorded at the ex parte departmental proceedings to stand. In G. M. Tank v State of Gujarat & others [(2006) 5 SCC 446], the Supreme Court while taking the entire case law into consideration, including its judgment in Capt. M. Paul Anthony (supra), held that though the finding recorded in a domestic enquiry may have been found to be valid by the courts below, when there was an honourable acquittal of the employee during the pendency of the proceedings challenging his dismissal, the same requires to be taken note of. The facts of the case aforesaid reveal that the employee, sequel to a departmental enquiry was found guilty of the charge and vide order dated 21.10.1982 was dismissed from service as punishment. The order of dismissal was confirmed in a writ petition filed by him before the High Court, both by the learned single Judge and the Division Bench. Aggrieved, he filed an appeal. It is during pendency of the proceedings before the High Court, it appears, that he was honourably acquitted in the criminal proceedings vide order dated 30.1.2002, and even though he brought this fact to the notice of the Honble High Court, yet, as mentioned above, his plea did not find favour either with the single Judge or the Division Bench of the High Court. As mentioned above, while taking into consideration the entire case law on the issue, the judicial pronouncement of acquittal of the employee which was honourable, was given precedence over the departmental proceedings. The appeal preferred by the employee in the Supreme Court was allowed. The observation that may be relevant while allowing the appeal, read as follows:
31. In our opinion, such facts and evidence in the department as well as criminal proceedings were the same without there being any iota of difference, the appellant should succeed. The distinction which is usually proved between the departmental and criminal proceedings on the basis of the approach and burden of proof would not be applicable in the instant case. Though finding recorded in the domestic enquiry was found to be valid by the Courts below, when there was an honourable acquittal of the employee during the pendency of the proceedings challenging the dismissal, the same requires to be taken note of and the decision in Paul Anthony's case (supra) will apply. We, therefore, hold that the appeal filed by the appellant deserves to be allowed.
6. From the discussion as made above, we are of the view that there is no difficulty if the employer may proceed only criminally against an employee. In that case, departmental proceedings may be held or not, the field is absolutely covered under rules 11 and 12 of the Rules of 1980. The difficulty will arise only in case, the order of punishment in departmental proceedings is earlier to the order passed by the criminal court, and that too when the verdict of the criminal court is that of acquittal and the circumstances are such as envisaged in rule 12 that no departmental enquiry can be held. In such a situation, as mentioned above, we are of the view that since a judicial order takes precedence over an order passed in departmental proceedings, it is the judicial verdict which has to be given effect, and, therefore, in that situation the order passed in departmental proceedings shall have to be re-visited and changed, modified or set at naught, as per the judicial verdict. This is the only way that appears to us to reconcile the situation which may arise only in the circumstances as mentioned above. This course to be adopted otherwise also appears to be one which will advance the cause of justice. It may be recalled that as per provisions contained in rule 11 of the Rules of 1980, a subordinate rank on his conviction can be dismissed or removed from service. Of course, as mentioned above, the result of the appeal that he may have filed shall have to be awaited. Once, he is acquitted in a second appeal or revision filed by him, he has to be reinstated, meaning thereby, if the order of his dismissal or removal from service has already been passed, the same has to be set at naught. Once, an order of dismissal or removal passed on conviction of the subordinate rank has to be reviewed on his acquittal later in point of time, we find no reason as to why the same procedure cannot be adopted in a case where the subordinate rank may have been held guilty of the charges framed against him, but later acquitted by the criminal court. We are conscious that as regards the first situation as mentioned above, the rules take care of it, whereas, for the situation in hand, the rules are silent, but since the settled law on the issue is that, rule or no rule, if on clean acquittal the order of punishment passed in departmental proceedings has to be re-visited or set at naught, why this provision cannot be read into the rules.
7. The Delhi Police, after judgment of the Honble Supreme Court in Capt. M. Paul Anthony (supra), issued Standing Order No.125/2008. Para 10 thereof specifically deals with parallel departmental proceedings when court cases are pending. After quoting from the judgment aforesaid and while taking into consideration another judgment of the Supreme Court in Kendriya Vidyalaya Sangathan & others v T. Srinivas [AIR 2004 SC 4127], 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 and the same 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. The said Standing Order has been passed in consonance with the settled law on the situation. However, as mentioned above, when a subordinate rank may earn a clean acquittal in criminal proceedings, the order, if has already been passed in departmental proceedings inflicting the subordinate with a penalty, shall have to be re-visited.
8. We may mention, before we may part with this order, that an ideal situation would be where the allegations against the subordinate rank are such which may constitute a cognizable offence, he should be criminally tried and the departmental proceedings should await the judicial verdict, but it is well neigh impossible to achieve this ideal situation, in view of the prevailing circumstances in the country. Experience shows that it takes years and years before a criminal trial may culminate into an order of conviction and sentence or acquittal. Cases are not lacking where subordinate ranks in police are facing serious criminal charges, like bribery, dacoity, rape and even murder. When heinous offences may be committed by those who may be in police and can be well said to be organized criminals, even though a few of them, it is always desirable if their delinquency is proved, that they should be shown the exit door as early as possible. Their continuance in police force will demoralize the entire rank and file in the police organization and would also shatter the morale and confidence of public at large. If the verdict in the criminal trial is to be awaited, which, as mentioned above, in a given case, may take even a decade or two, it will totally demoralize the public at large. Further, in our view, if the subordinate rank may be innocent, it is better for him as well that he steers clear of the charges framed against him in the departmental proceedings, and the earlier it is done, the better it will be for him, as otherwise, he would be looked down upon not only by the society, but, in a given case, even by his own family. It may be in an absolutely small percentage of cases where the subordinate rank may be held guilty in departmental proceedings, and yet are honourably acquitted by the criminal court. Such persons can well be taken care of by reinstating them in service by setting at naught the orders passed in departmental proceedings by reinstating them and giving them all that may be due under rules. Corruption is eating into the very vitals of the society. We need not refer to judicial precedents where this aspect has been emphasized, as that would unnecessarily burden the judgment. Such persons who may be a burden to the nation cannot be allowed to continue in service and that too such service as police. There are adequate remedies available for them, in cases, however, they are honourably acquitted, by restoring them their status by reinstating them and giving them all consequential benefits.
9. In view of the discussion made above, we hold that there is no bar, express of implied, in the Rules of 1980 for holding simultaneous criminal and departmental proceedings. However, in case departmental proceedings may culminate into an order of punishment earlier in point of time than that of the verdict in criminal case, and the acquittal is such that departmental proceedings cannot be held for the reasons as mentioned in rule 12, the order of punishment shall be re-visited. The judicial verdict would have precedence over decision in departmental proceedings and the subordinate rank would be restored to his status with consequential reliefs.
10. In view of our findings on the first issue, there would be no need to put on hold the final orders in departmental proceedings awaiting the decision of the criminal court.
11. The questions as referred to the Full Bench are answered as above. Registry shall list this matter for hearing before the Division Bench for any other submissions that may be made by the counsel representing the applicants.
( Dr. Dharam Paul Sharma ) ( L. K. Joshi ) ( V. K. Bali )
Member (J) Vice-Chairman (A) Chairman
/as/