Central Administrative Tribunal - Delhi
Asi Raghubir Singh vs The Commissioner Of Police on 18 April, 2011
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-2838/2010
New Delhi this the 18th day of April, 2011.
Honble Mrs. Meera Chhibber, Member (J)
Honble Dr. A.K. Mishra, Member (A)
ASI Raghubir Singh,
S/o Sh. L.S. Rawat,
R/o V.2/4, Police Colony,
Andrewj Ganj,
New Delhi-49. . Applicant
(through Sh. Sachin Chauhan, Advocate)
Versus
1. The Commissioner of Police,
Police Headquarters, MSO Building,
I.P. Estate, New Delhi.
2. The Special Commissioner of Police,
Armed Police,
Police Headquarters, MSO Building,
I.P. Estate, New Delhi.
3. The Dy. Commissioner of Police,
IIIrd Bn., DAP Vikas Puri,
Police Complex,
New Delhi-18.
4. The Dy. Commissioner of Police,
Traffic Headquarters,
Through Commissioner of Police,
Police Headquarters, I.P. Estate,
MSO Building, New Delhi. . Respondents
(through Sh. B.N.P. Pathak, Advocate)
O R D E R
Dr. A.K. Mishra, Member (A) This application has been filed challenging the order dated 13.04.2010 passed by the Disciplinary Authority (DA) imposing a penalty of temporary forfeiture of one year approved service and deciding to treat the period under suspension as not spent on duty. He has also assailed the order dated 27.07.2010 of the Appellate Authority (AA) who has rejected his statutory appeal. His prayer is to set aside not only these orders but all other relevant orders relating to the departmental inquiry initiated against him and restore his forfeited one years approved service with all consequential benefits.
2. The applicant, Asstt. Sub-Inspector (ASI) of Police, was posted along with co-delinquent Constable Kuldeep Singh at traffic red light point Kalyan Puri. There were allegations that the Constable demanded Rs.100/- from a truck owner and on getting payment of the amount allowed the truck to pass without challenging it, even though it did not have the toll receipt. The Vigilance Team which had mounted surveillance at this point detected this incident and came to know from the truck owner that he had paid Rs.100/- as bribe to Constable Kuldeep Singh. This amount was subsequently recovered from the Constables pocket and identified by the complainant as the same notes given by him. A departmental inquiry was initiated on 31.03.2005. Before that, a criminal case covered by FIR No. 56/3 dated 25.11.2003 was registered against the applicant and the Constable Sh. Kuldeep Singh. Since the FIR resulted in prosecution of the applicant and the other co-accused, a decision was taken to keep the departmental inquiry in abeyance.
2.1 The Trial Court acquitted the two accused persons in judgment dated 14.11.2008, but the DA decided to reopen the inquiry which was kept in abeyance. Accordingly the inquiry was conducted after giving due opportunity to the applicant and the other delinquent employee. The Inquiry Officer (IO) concluded that the charge of demanding and accepting money was not proved against the applicant, but held him guilty of dereliction of duty and lack of supervision over the conduct of his subordinate. The findings were served on the applicant who submitted his written representation against the same.
2.2. The DA agreed with the findings of the IO and imposed the impugned penalty on the applicant. His appeal was also rejected; hence the O.A.
3. At the time of hearing, learned counsel for the applicant canvassed the following arguments:-
3.1 The DA had not applied its mind as required under Rule-12 of the Delhi Police (Punishment & Appeal) Rules, 1980 before reopening the departmental inquiry. As such, the entire proceedings starting with the reopening of the inquiry should be treated as bad in law and set aside. He contends that the DA will have competence to reopen a disciplinary inquiry only if the case falls within the five exceptions specifically provided in the Rule itself. Before reopening the inquiry he has to apply his mind and come to a conclusion that prima-facie the case comes within one of the five exceptions. Rule-12 of the aforesaid Rules reads as under:-
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:-
the criminal charge has failed on technical grounds, or in the opinion of the court, or on the Deputy Commissioner of Police the prosecution witnesses have been won over; or the court has held in its judgment that an offence was actually committed and that suspicion rests upon the police officer concerned; or 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 additional evidence for departmental proceedings is available. It is seen that the applicant had not specifically challenged at the stage of reopening of the departmental proceedings against him the action of the respondents on the ground that the case did not come under the exceptions of Rule-12, ibid. No doubt, he mentioned about his acquittal in the criminal case and submitted that disciplinary action amounted to disbelieving the criminal court in the preliminary defence statement (Annexure A-12, P.49). Nevertheless, he participated in the inquiry and it was only at the stage he represented against the findings of the IO that he clearly mentioned the ground of the case not being covered under the exceptions of Rule-12 (Annexure A-10, P.44). Therefore, it will be examined later whether the DA discussed properly this ground in the impugned order or not.
3.2 The second argument advanced in favour of the applicant is that the IO has held him guilty of dereliction of duty and improper supervision over the conduct of his subordinates-allegations which were not covered by the charge brought against the applicant. In other words, he has been held guilty of non-existent charges. According to him, the charge against the applicant and the other co-defendant was that they demanded and collected Rs.100/- from the truck owner Sh. Randhir Rathi while they were posted in Kalyan Puri Circle on 08.11.2003. The IO in his report has found the applicant guilty only of (a) dereliction of duty for not challaning the truck and (b) lack of supervision on his subordinate. He has found the other co-defendant Constable Kuldip Singh guilty of demanding and accepting Rs. 100/- as illegal gratification for not challaning the vehicle and additionally of dereliction of duty for not challaning the vehicle although it was not carrying the Toll Entry receipt.
3.3 According to the learned counsel, the applicant was exonerated from the serious offence of demanding and accepting illegal gratification, which constituted the main ingredient of the charge. There was no mention about lack of supervision in the charges brought against the applicant. He places reliance on the judgment in support of the contention that in the case Khilari Ram Meena Vs. GNTD, (OA-2362/2005) decided on 17.08.2006 in support of the contention that the applicant could not be held guilty of a charge which does not find place in the charge sheet.
4. Admittedly, the charge against the applicant was gross misconduct and dereliction in discharge of his duty. The IO has held him guilty of this charge. The observation of the DA made in this connection is as follows:-
As regards the plea taken by the delinquent ASI Raghubir Singh that lack of supervision is not a misconduct, the same is frivolous. Had he supervised the staff under his control properly, the incident of demanding and accepting illegal gratification by Const. Kuldeep Singh from the owner of a private vehicle could have been averted. This misconduct of Const. Kuldeep Singh has tarnished the image of Delhi Police Department before the eyes of the general public and the defaulter ASI Raghubir Singh is fully responsible for his lack of supervision.
5. In this connection it would be necessary to examine the charge brought against the applicant. Relevant portion of the charge annexed at A-11 (P.48) is extracted below:-
Consequently, a D.E was entrusted to the undersigned vide order No 9216-17/HAP/III Bn. DAP dated 8.9.2009. The undersigned has examined the relevant documents, material evidence on record and the prosecution witness, and has found so far that you demanded, accepted and obtained Rs 100/- as illegal gratification from the complainant Sh. Randhir Rathi for not challaning his vehicle on 8.11.2003.
Hence, the above act on the part of you ASI Raghubir Singh, No 2247/T (PIS No 28741042) and Ct. Kuldeep Singh, No 2858/DAP (PIS No 28990743) amounts to gross misconduct and dereliction in the discharge of your official duties which renders you liable to be punished under the provision of Delhi Police (Punishment & Appeal) Rules 1980 as well as 21 Delhi Police Act 1978. Your reply in farm of defence statement, if any, should reach to this office within 7 days receipt of the charge. 5.1 From the allegations described in the charge, it is seen that the misconduct and dereliction in duty related to both demanding and acceptance of Rs.100/- as illegal gratification as well as for not challaning the vehicle on 08.11.2003. The IO has exonerated the applicant from the charge of demanding and accepting illegal gratification to held him guilty of dereliction in duty of not challaning the vehicle as well as exercising supervision over his subordinates. Although the phrase lack of supervision does not occur in the charge yet the allegations finding place in the charge that the vehicle without toll receipt was not challaned and allowed to go in the presence of the applicant would support the inference that the expression lack of supervision would be covered under the umbrella of misconduct and dereliction in duty.
6. Learned counsel for the applicant submits that in view of clear acquittal by the Criminal Court, the DA was under obligation by law to revisit the evidence brought against the applicant and specifically come to a conclusion that he could be punished on the ground that his case came under any of the five exceptions of the aforesaid Rule. In support of this contention he places reliance on the following judgments:-
(ii) HC(Dvr.) Raj Kumar Vs. Commr. Of Police & Ors., (OA-2330/2004) decided on 20.01.2005.
Constable Raj Pal Singh Vs. Commr. Of Police & Ors., (OA-2064/2010) decided on 10.03.2011.
HC Jag Saran Vs. GNCT & Ors., (OA-1296/2003), decided on 12.01.2004.
HC Gyan Chand Vs. GNCTD & Ors., (OA-31/2005), decided on 02.08.2005.
Const. Deepak Kumar Dubey Vs. GNCTD & Ors., (OA-760-2008), decided on 09.01.2009.
HC Raj Kumar Vs. GNCTD & Ors., (OA-424/2009), decided on 18.01.2011.
Govt. of NCT of Delhi & Ors. Vs. Satya Dev Singh, (WP(C) No. 4431/2005 to WP(C) 4433/2005 decided on 21.4.2005.
Learned counsel for the respondents submits that the case of the applicant comes under exception (a) i.e. the criminal charge had failed on technical ground. This was opposed by the learned counsel for the applicant who submits that the applicant was acquitted on merit. The Trial Court discussed the prosecution evidence and the circumstances of the case and came to a conclusion that the prosecution story that two G.C. notes were handed over by the owner of the truck to Constable Kuldeep Singh was not established. Therefore, the Court was not inclined to convict the accused person. According to him, such a verdict could not be termed as technical acquittal.
7. We find that the DA has specifically mentioned that the provisions of Rule-12 of Delhi Police (Punishment and Appeal) Rules, 1980 were examined by him and thereafter it was found that both the accused persons have been acquitted due to procedural lapses. The observations of the DA are as under:-
3. The delinquents further pleaded that the Honble Court of Sh. A.S. Yadav, Special Judge, Delhi vide its judgement dated 14.11.2008 has acquitted both of them from the charge in case FIR No. 56/03 u/s 7/13 POC Act, P.S. A.C. Branch, Delhi, hence no more action against them by the department is warranted at this stage.
The plea taken by the defaulters is not maintainable. The Honble Courts order dated 14.11.2008 has been examined under the provisions of rule-12 of Delhi Police (Punishment & Appeal) Rules, 1980 and found that both of them have been acquitted due to certain procedural lapses of investigation by the I.O. of the case. On the other hand, none of the defaulter has denied the occurrence of the incident took place on 8.11.2003 which proved that there was some iota of truth on the incident of the alleged day i.e. on 8.11.2003. Besides, the pronouncement of judgement of the Honble Court is to look more into the legal, procedural and judicial aspects into the investigation of the said case. But, the instant D.E. proceedings is mainly based on the aspect of dereliction in the discharge of official duty, honesty and scrupulousness of the police personals. Therefore, the argument of the defaulters for taking basis of acquittal in the Honble Court of Law for exonerating them from the charge is not tenable.
Keeping in view of the overall facts and circumstances of the case, I found that both defaulters are not denying incident at spot. Enquiry Officer also stated in his findings that acquittal of the delinquents in the said case was due to failure on the part of I.O. on certain procedural aspect of investigation, it mean defaulters were not acquitted honourably by the Honble Court.xxxxxxxx He took into consideration the fact that none of the delinquent officials had denied the occurrence of the incident on 08.11.2003. He has stated that the examination of evidence in a criminal court is of rigorous standard but the disciplinary proceeding is mainly an inquiry into the charge of dereliction in duty of the delinquent employee.
8. The ratio of the judgments cited by the learned counsel for the applicant supports the view that a police employee can be punished after acquittal in a criminal case only if the case comes under one of the five exceptions specifically mentioned in Rule-12 ibid. The applicant had clearly mentioned in his representation dated 25.05.2009 addressed to the DA that the case did not come under any of the exceptions. Learned counsel for the applicant also submits that the applicant was acquitted by the Criminal Court in respect of the same allegations after analysis of evidence led by the prosecution; neither was the acquittal obtained on benefit of doubt. In the circumstances, it was necessary for the DA to have discussed and given reasons as to how it considered the case to be one coming within any of the five exceptions. Since a clear finding has not been given by the DA or the AA, it is not possible to accept the submission of the learned counsel for the respondents that the case came under exception Rule-12(a) ibid.
8. In the circumstances, the orders of the DA and AA are set aside and the matter is remanded to the DA to examine the case in the light of the ground specifically stated in the representation dated 25.05.2009 and give a clear finding about the specific clause (s) of Rule 12 under which the matter falls before proceeding to impose any penalty on the applicant.
9. The O.A. is disposed of in aforesaid terms. No costs.
(Dr. A.K. Mishra) (Mrs. Meera Chhibber)
Member (A) Member (J)
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