Central Administrative Tribunal - Delhi
Constable Mangal Singh vs Govt. Of Nct Of Delhi Through on 17 May, 2013
Central Administrative Tribunal
Principal Bench, New Delhi
O.A.No.3380/2012
New Delhi this the 17th day of May, 2013
Honble Shri George Paracken, Member (J)
Honble Mr. Shekhar Agarwal, Member (A)
Constable Mangal Singh
Age 41 years
S/o Late Shri Yad Ram
No.7553/DAP, IIIrd Bn. DAP
Jaroda Kalan Delhi
R/o B-6/41 Sector-5,
Rohini, Delhi-85. Applicant
(By Advocate: Shri Sachin Chauhan).
Versus
1. Govt. of NCT of Delhi through
The Commissioner of Police,
PHQ, I.P. Estate,
New Delhi.
2. The Special Commissioner of Police,
Armed Police,
Delhi through
The Commissioner of Police,
PHQ, I.P. Estate,
New Delhi.
3. The Deputy Commissioner of Police,
3rd Bn. DAP,
Vikas Puri,
New Delhi. ..Respondents
(By Advocate: Ms. Harvinder Oberoi).
ORDER (ORAL)
Honble Sh. G. George Paracken:
According to the learned counsel for the Applicant, Shri Sachin Chauhan, this case is squarely covered by the judgment of the Full Bench of this Tribunal dated 18.02.2011 in OA No. 2816/2008 Sukhdev Singh and Another Vs. Government of NCT of Delhi and Others. According to the said order, there is no bar, express or implied in the Delhi Police (Punishment & Appeal) Rules, 1980 for holding simultaneous criminal and departmental proceedings. However, in case the departmental proceedings culminated into an order of punishment earlier in point of time than that of verdict in criminal case on the same charge and if the acquittal in the criminal case is such that departmental proceedings could not have been held for reasons as mentioned in Rule 12 thereof, the order of punishment shall be re-visited as the judicial verdict would have precedence over the decisions in departmental proceedings and the subordinate rank would be restored to his status with consequential reliefs. The relevant part of the said order reads as under:-
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.
2. For the sake of convenience, Rule 12 ibid is also reproduced as follows:-
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.
3. The Applicant in the present Original Application has been proceeded departmentally under Rule 16 of the Delhi Police (Punishment and Appeal) Rules, 1980 on the following charge:-
I, H.R. Malik, Enquiry Officer/Inspector, DE Cell, Delhi charge you Const. Mangal Singh No.7553/DAP (PIS No.28940078) that on dated 06.05.2008, acting on a secret information that a person in civil clothes used to collect the entry for the traffic staff in North-West area from the school vans and delivery vans, Inspector Surjeet Malik (PRGT/T/Vig.) along with SI Sanjeev Kumar No.D-877 reached near Power House, Ring Road Prashant Vihar and noticed that one person wearing civil clothes was stopping school vans and delivery vans near the Power House at Pitampura side. Driver of Maruti Van No.DL-6CH-6598 was found talking with that person. The said Maruti Van was stopped 200/200 yards ahead by the PRG(T) team. On enquiry, van driver Sanjeev Kumar s/o Kabool Singh told that the person was asking for the entry of Rs.200/- for plying school van in the area. The driver of the van refused to pay as he was not having money at that time and told the person that he will give the money next day. Consequently, Inspector Surjeet Malik gave two currency notes of Rs.100/- each bearing no.5LL 449610 and 6 ALV 768069. Both the notes were signed with date by Inspector Surjit Malik and sent the school van back and followed the school van. On reaching at the place where the person was standing, school van driver stopped his vehicle, gave the entry money to that civilian person and who kept the currency notes in the rear pocket of his pant. That person along with one other person who was standing with that civilian, wearing blue pant and civil shirt were apprehended. Both the numbered notes were recovered from the rear pocket of the pant of that civil person, whos name came to notice as Jitender Pandey s/o Jagat Nath Pandey r/o G-11/112, Janta Flats, Sector-15, Rohini and your name came to notice as Mangal Singh and you stated that you were working as Constable in Traffic Police and presently posted at Rohini Circle. Jitender Nath disclosed that he had been collecting the entry money from the school vans and delivery vans for the last three months. On the statement of Sanjeev Kumar, a case vide FIR No.271/2008 dated 13.05.2008 u/s 7/13 POC Act, PS Shalimar Bagh, Delhi was registered and investigated by Crime Branch.
You Const. Mangal Singh of 3rd Bn. DAP, earlier posted in Traffic Unit at Rohini Circle, were arrested in the said case on 19.09.2008 and presently, you are on bail from court.
The above act on the part of you Const. Mangal Singh No.7553/DAP amounts to grave misconduct, indiscipline, dereliction in the discharge of your official duties and unbecoming of a police officer which renders you liable to be punished under the provisions of Delhi Police (Punishment & Appeal) Rules, 1980.
4. In the departmental enquiry, the Enquiry Officer held that the aforesaid charge has been proved and submitted a report to that effect to the Disciplinary Authority. Considering the aforesaid report of the Enquiry Officer and the representations made thereon by the Applicant, the Disciplinary Authority, vide its order dated 12.08.2011 awarded the punishment of forfeiture of 05 (Five) years of approved service permanently to Applicant, Constable Mangal Singh No.7553/DAP entailing proportionate reduction in his pay with immediate effect without prejudice to outcome of final verdict in the said criminal case. The Disciplinary Authority has also decided that the suspension period of the Applicant from 19.09.2008 onwards will be decided later on. Applicant has made a statutory appeal against the aforesaid order passed by the Disciplinary Authority but the same was rejected vide order dated 18.06.2012 by the Appellate Authority and the aforesaid order of the Disciplinary Authority was upheld. He has, therefore, filed this OA challenging the report of the Enquiry Officer and the impugned orders passed by the Disciplinary Authority and the Appellate Authority seeking the following reliefs:-
(i) To quash and set aside order dated 12.08.2011 whereby the major punishment of forfeiture of 05 (Five) years of approved service permanently entailing proportionate reduction in his pay with immediate effect is imposed upon the Applicant at Annexure A-1, order dated 18.06.2012 of Appellate Authority whereby the appeal of the Applicant has been rejected at Annexure A-2 and to further direct the respondents that the forfeited years of service be restored as it was never forfeited with all consequential benefits including seniority and promotion and pay and allowances. The respondents be directed to treat the entire suspension period of the Applicant as spent on duty for all intents and purposes.
(ii) To set aside the findings of the Enquiry Officer.
(iii) Any other relief which this Honble Court deems fit and proper may also be awarded to the Applicant.
5. The Respondents have filed their reply justifying the aforesaid findings of the Enquiry Officer, orders of the Disciplinary and Appellate Authorities.
6. Side by side, for the aforesaid charge an FIR No. 271/08 was also filed against the Applicant on 13.05.2008 u/s 8/7/13(1)(d) of the Prevention of Corruption Act, 1988. He was also subjected to criminal trial vide CC No. 09/13 before the Special Judge-07 (Central), (PC Act Cases of ACB, GNCTD), Delhi. According to the judgment, the criminal case against the Applicant was as under:-
The precise case of the prosecution is that on dated 06.05.2008 Surjit Sing Inspector in Vigilance Branch in Traffic Police (Public Redressal Grievances Cell), Prashant Vihar along with SI Sanjiv Kumar, on receipt of a secret information reached near Power House, Ring Road, Prashant Vihar and noticed that one person in civil clothes was standing there and one School Van was returned by him after some talk with the Driver of the School Van. Thereafter, said Inspector Surjit Singh along with SI Sanjiv Kumar at a short distance stopped School Van and inquired the matter from Driver of School Van who informed that said person in civil clothes was demanding Rs.200/- as entry money from him. On this Inspector Surjit Singh gave him Rs.200/- in the form of 2 GC notes of Rs.100/- duly signed by him and send him back to give the money to that person who was demanding from him. Thereafter Inspector Surjit Singh along with SI Sanjiv Kumar followed the School Van and caught the person to whom the School Van Driver gave the said money. On inquiry, said person disclosed his name as Jitender Nath Pandey and it was further noticed that another person wearing blue pant was also standing nearby to him and was also apprehended and on inquiry, it was revealed that he was Constable Mangle Singh and posted in Traffic Police and detained for duty at Power House, Prashant Vihar. From personal search of said Jintender Nath Pandey, Rs.200/- which was earlier signed by Inspector Surjit Singh, was recovered and same were seized vide Seizure Memo Ex.PW6/A. Said 2 GC notes of Rs.100/- each were placed in an envelope and it was sealed. Inspector Surjit prepared his Report in this respect which is Ex.PW6/b. Ultimately, on the basis of statement of complainant Sanjiv Kumar and endorsement of ACP Dharamvir Singh Ex.PW13/A, FIR bearing No.271 U/S 7/13 of Prevention of Corruption Act was registered at PS Shalimar Bagh on dated 13.05.2008, copy of which is Ex.W5/A.
7. Finally, the Special Judge vide judgment dated 08.04.2013 acquitted the Applicant and the other accused, Shri Jitender Nath Pandey of the charge. The relevant part of the aforesaid judgment reads as under:-
22. Furthermore, there is nothing on record to establish that both the accused persons have entered into any criminal conspiracy to extract bribe of Rs.200/- from the complaint Sanjeev Kumar and in pursuance of the same, they have obtained bribe of Rs.200/- from the complainant and, therefore, no case for offence punishable u/s 120-B IPC r/w Section 7/8 and 13(2) of Prevention of Corruption Act, 1988 could be established against both the accused.
23. In view of the aforesaid discussion, I have no hesitation to safely conclude that since the case of the prosecution is found to suffer from several legal infirmities whereby striking at the root of the prosecution case thereby resulting in acquittal of both the accused persons and, therefore, both the accused namely Jitender Nath Pandey and Mangal Singh are ordered to be acquitted of the charged offence. Resultantly, their bail bonds stand cancelled and their sureties stand discharged.
8. In view of the above position, the learned counsel for the Applicant, Shri Sachin Chauhan has argued that the order of the Full Bench of this Tribunal dated 18.02.2011 in the case of Sukhdev Singh and Another (supra) would squarely apply in this case. Learned Counsel for the Respondents, Ms. Harvinder Oberoi has also not objected to the aforesaid submission. However, it is seen that Disciplinary Authority itself in its order dated 12.08.2011 has stated that the same was issued without prejudice to the outcome of final verdict in the said criminal case. We, in the above facts and circumstances, direct the Disciplinary Authority to re-visit its aforesaid impugned order dated 12.08.2011 and to pass the consequential order within a period of 2 months from the date of receipt of a copy of this order. If the Applicant is still aggrieved, he may pursue his remedy in accordance with the rules.
9. There shall be no order as to costs.
(SHEKHAR AGARWAL) (G.GEROGE PARACKEN)
MEMBER (A) MEMBER (J)
Rakesh