Central Administrative Tribunal - Delhi
Const. Rajender Kumar vs Government Of Nct Of Delhi Through on 9 October, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI O.A. NO.1686/2006 This the 9th day of October, 2009 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE SHRI L. K. JOSHI, VICE-CHAIRMAN (A) Const. Rajender Kumar (PIS No.28862976), R/O B-38 Police colony, Model Town-II, Delhi-9. Applicant ( By Shri Anil Singal, Advocate ) Versus 1. Government of NCT of Delhi through Commissioner of Police, PHQ, IP Estate, New Delhi. 2. Joint Commissioner of Police, New Delhi Range, PHQ, IP Estate, New Delhi. 3. DCP/Addl. DCP (New Delhi Distt.), PS Parliament Street, New Delhi. 4. Insp. Jagdish Malik (EO), RI/NDD, New Delhi. Respondents ( By Ms. Jyoti Singh, Advocate ) O R D E R Justice V. K. Bali, Chairman:
Rajender Kumar, Constable in Delhi Police, the applicant herein, through present Original Application filed by him under section 19 of the Administrative Tribunals Act, 1985, seeks setting aside of order dated 21.11.2005 (Annexure A-1) initiating departmental enquiry against him, summary of allegation dated 30.11.2005 (Annexure A-2), order dated 7.7.2006 (Annexure A-3) appointing enquiry officer, as also proceedings dated 21.7.2006 (Annexure A-4) recorded by the enquiry officer.
2. The facts on which the reliefs as asked for are sought to rest, and which are not in dispute, reveal that the applicant had to face a trial with regard to FIR 38/95 u/s 7/13 Prevention of Corruption Act, but vide judgment dated 14.7.2004 he was acquitted by the learned Special Judge, Delhi. As per the case set up by the applicant, on his acquittal he was immediately entitled to reinstatement, seniority and promotion as also arrears of pay, but the respondents after delay of more than a year from the date of acquittal, initiated departmental enquiry against him vide order dated 21.11.2005. The enquiry officer issued summary of allegations on 30.11.2005 on the same set of allegations that were subject matter of criminal trial. The applicant made his representation on 23.12.2005 for dropping disciplinary proceedings being in violation of rule 12 of the Delhi Police (Punishment & Appeal) Rules, 1980 (hereinafter to be referred as the Rules of 1980), which was rejected vide order dated 7.7.2006. We need not refer to further pleadings made in the Application with regard to the enquiry proceedings. Suffice it, however, to mention that the proceedings were pending at the time when the applicant approached this Tribunal and vide orders dated 14.8.2006 the Honble Bench then seized of the matter ordered status quo as on that date as regards the disciplinary proceedings. The only but forceful ground that has been raised in support of the present Application is that once the applicant has been acquitted by the criminal court and the said order has attained finality, the applicant cannot be departmentally tried on the allegations which were subject matter of the criminal charge against him, as that would be prohibited by rule 12 of the Rules of 1980.
3. Pursuant to notice issued by this Tribunal respondents have entered appearance and by filing their counter reply contested the cause of the applicant. The applicant has filed rejoinder. We need not refer to the pleadings as the facts as stated hereinabove are not in dispute. The contest between the parties is only with regard to applicability of rule 12 of the Rules of 1980. Before we may, however, refer to the rule and the judicial precedents relied upon by the learned counsel representing the parties, we may make a brief mention of the findings of the criminal court while returning a verdict of acquittal. The applicant, as per the prosecution version, was apprehended by anti-corruption branch officials on 30.10.1995 during a trap organized while accepting bribe from one Gajender Singh. The trap was laid on a complaint made by Gajender Singh to anti-corruption branch, wherein he stated that he was having a bus which was towed away by one ACP of traffic police to Parliament Street Police Station while it was parked near Statesman office on 26.10.1995, which information was given to him by the driver of the bus. He further alleged that on 27.10.1995 he went to police station for release of his bus where he came to know that ACP at Pragati Maidan would pass order for release of the vehicle. He then went to Pragati Maidan where he gave an application to reader of the ACP for release of his bus, but on that day the ACP did not come and the bus could not be released. He also stated that he went again there on Saturday and on that day the reader of the ACP, Const. Rajender (the applicant) told him that he would charge Rs.600/- and then would get the bus released, but when the complainant refused to pay the money, the applicant kept on harassing him throughout the day and did not get order passed from ACP and at 6 p.m. told him that ACP would come on Monday, and that he should bring Rs.600/- for release of the vehicle. The complainant also mentioned that although he was against giving and taking bribe, but out of helplessness he had agreed to pay money to the applicant. It is on the allegations as mentioned above that the trap was laid. In its endeavour to bring home the offence alleged against the applicant, prosecution examined 13 witnesses, whereafter statement of the applicant u/s 313 Cr.PC was recorded. The applicant denied the allegations of prosecution and rather pleaded that he was a victim of circumstances and that the true facts were that a fine of Rs.100/- was imposed by ACP/Traffic in the presence of the complainant and then the applicant asked the complainant to pay the fine, whereupon the complainant gave him a note of Rs.500/-. The learned Metropolitan Magistrate, after referring to the evidence adduced by the prosecution, and in the context of the statement made by the applicant u/s 313 Cr.PC, made some observations, which would need a pertinent mention, thus:
I have come to the conclusion that in this case the accused has been able to probabilise his explanation for the recovery of phenolphthalein treated notes Ex. P-1 & P-2 from his shirt pocket. I would now show how prosecution cannot be said to have proved its case beyond reasonable doubt and that the defence explanation about recovery of tainted money is probable and so acceptable. So, it is clear that the complainant has introduced a new case in court. In his complaint the complainant had alleged that on 27-10-95 ACP was not present in his office and in that complaint there was no allegation that the accused had demanded bribe on 27-10-95. Therefore, the complainants testimony becomes doubtful. However, his drive Rajvir when examined as PW10 by the prosecution has (illegible) an altogether different story. He has claimed that on 26-10-95 when he informed the owner (complainant) that bus had been towed away the owner had gone to Pragati Maidan Traffic Office and had told him (PW10) that traffic officials were demanding Rs.600/- for releasing the vehicle. That, however, is not the version of the complainant either in his complaint EX-PW2/A or before this court. PW10 has also deposed that on 27-10-95 Gajinder Singh (PW2) had told him that Rajinder (accused) had taken Rs.600/- from him for releasing the vehicle and thereafter fine of Rs.100/- was also imposed separately. This is also not the version of the complainant and these different versions of the complainant and his driver Rajvir Singh, whose version was not challenged by the public prosecutor, make the entire prosecution case doubtful and the complainants testimony about demand of bribe by the accused in particular. Here, as noted already it is not in dispute that Rs.600/- were recovered from the shirt pocket of the accused. His plea is that he was not aware that the complainant had mischievously wrapped a note of Rs.100/- inside the note of Rs.500/- and so he had accepted the money believing it to be note of Rs.500/- only and before he could take steps to return Rs.400/- to the complainant police came there and apprehended him. The plea of the accused that the complainant had wrapped note of Rs.100/- in the note of Rs.500/- is corroborated by the panch witness also whom the prosecution has examined as an independent witness and I have no reason to disbelieve him. In his cross-examination the panch witness had also admitted that when they had come out from the room of ACP accused demanded from the complainant Rs.100/- fine imposed by ACP. He also admitted that a note of Rs.100/- was wrapped in the note of Rs.500/-. So, in view of these admissions of the prosecutions own independent witness the plea of the accused that he had accepted note of Rs.500/- from the complainant as Rs.100/- fine was to be given by the complainant and he (accused) was to return back Rs.400/-but before he could do that he was apprehended gets probabilised and that is what the accused was required to do.
It was rightly argued by the learned counsel for the accused that even the conduct of the accused at the time of his apprehension shows his innocence inasmuch as he immediately refuted that he had accepted bribe from the complainant when he was challenged by the raid officer. This was deposed by the complainant himself in his chief examination. I am, therefore, of the view that in the facts and circumstances of the case prosecution cannot be said to have established its case beyond reasonable doubt and therefore, the accused has become entitled to be acquitted.
4. Present is not a case where the prosecution witnesses may have turned hostile having been won over by the applicant. It is rather a case where prosecution version was doubted and the defence projected by the applicant was accepted. We are not here to comment upon as to in the facts and circumstances as mentioned above, the order should have been of clean acquittal or acquittal on benefit of doubt. However, it is settled proposition of law by now that when in the main judgment the findings may be such that the prosecution version is rejected or the plea raised by the defence is accepted, the order of acquittal on benefit of doubt would be superfluous. To illustrate, if in a charge of murder the accused may take the plea of right of self-defence of person or property and may prove it to the hilt, and the court may also hold that the accused had a right of self-defence of person or property and yet may acquit him by giving him benefit of doubt, can it be a case of clean acquittal? If yet the acquittal is still by giving him benefit of doubt, the same would, as mentioned above, be superfluous. We had an occasion to deal with this precise question in OA No.33/2008 decided on 2.6.2008 in the matter of Ram Phool Meena v Commissioner of Police & Others, and returned a finding in tune with what has been stated above, based upon number of judicial precedents. We may also mention that in a recent decision of a Division Bench of the Delhi High Court in WP (C) Nos.11739/2009 and 11741/2009 decided on 23.9.2009 in the matter of Government of NCT of Delhi & Others v ASI Karan Singh & Another, confirming the decision of this Tribunal, the High Court took a view that when there is no finding of witness having been won over, the mere fact that the witness has turned hostile would not make any difference and the case would be still covered by rule 12 of the Rules of 1980. A similar view has also been taken by the Honble Supreme Court in State of Punjab & Others v Prem Sarup [(2008) 12 SCC 522], even though under provisions of rule 16.3 of the Punjab Police Rules, which is pari materia to rule 12 of the Rules of 1980. Same view was taken by the Tribunal in OA No.1053/2004 decided on 13.8.2004 in the matter of Satya Dev Singh v Government of NCT of Delhi & Others, which decision has been affirmed up to the Honble Supreme Court.
5. Per contra, however, Ms. Jyoti Singh, learned counsel representing the respondents, would rely upon a judgment of the Delhi High Court in V. Jayapalan v Commissioner of Police, Delhi & Others [149 (2008) Delhi Law Times 674 (DB)]. The facts of the case aforesaid reveal that the employee, also in Delhi Police, was initially convicted u/s 21 of Narcotic Drugs and Psychotropic Substances Act, 1985, but was acquitted by the learned single Judge of the High Court by holding that it was not proved beyond shadow of doubt that the petitioner had committed the said offence. The facts, if at all, only show that the acquittal was on suspicion of the prosecution version. There is no mention with regard to any such findings which may show clean acquittal. The judgment relied upon by the learned counsel representing the respondents, on facts, appears to be distinguishable.
6. In view of the discussion made above, this Application is allowed. Order dated 21.11.2005 (Annexure A-1) initiating departmental enquiry against the applicant, summary of allegation dated 30.11.2005 (Annexure A-2), order dated 7.7.2006 (Annexure A-3) appointing enquiry officer, as also proceedings dated 21.7.2006 (Annexure A-4) recorded by the enquiry officer, are quashed and set aside. There shall, however, be no order as to costs.
( L. K. Joshi ) ( V. K. Bali ) Vice-Chairman (A) Chairman /as/