Central Administrative Tribunal - Delhi
Ashok Kumar vs Comm. Of Police on 19 December, 2017
1 OA 4265/14
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A.NO.4265 OF 2014
New Delhi, this the 19th day of December, 2017
CORAM:
HON'BLE SHRI RAJ VIR SHARMA, JUDICIAL MEMBER
AND
HON'BLE MS.PRAVEEN MAHAJAN, ADMINISTRATIVE MEMBER
............
Ashok Kumar (Ex-Constable),
S/o Sh.Ravi Dutt Tyagi, aged about 52 years,
r/o village Chhattarpur,
House no.33,
New Delhi 110074 .......... Applicant
(By Advocate: Mr.M.K.Bhardwaj)
Vs.
Commissioner of Police and others through:
1. Commissioner of Police,
Police Hq, I.P.Estate,
New Delhi.
2. The Additional Commissioner of Police,
Armed Police, Delhi.
3. The Dy.Commissioner of Police,
IIIrd Bn, Vikaspuri,
New Delhi .......... Respondents
(By Advocate: Mr.K.M.Singh)
............
ORDER
Per RAJ VIR SHARMA, MEMBER(J):
Brief facts of the case, which are not in dispute, are that while the applicant was serving as a Constable in Delhi Police, an FIR No.146/94, under Sections 307 and 324 read with Section 34 IPC, was registered against him and others at Mehrauli Police Station, New Delhi, pertaining to an incident which took place on 11.6.1994. The said FIR arose out of DD No.43B recorded by the concerned officer of the said Police Station on 11.6.1994 at 8.05 P.M. As per the DD No.43B, a quarrel was going on at Crossing of Bhoomika Pooja Sthan (Tyagi Mohalla, Chattarpur). On the Page 1 of 10 2 OA 4265/14 basis of DD No.43B, the police proceeded to the spot. When the police reached the spot, they learnt that the injured had been removed to the hospital. At the hospital, the statements of the injured were recorded by the police. As per version of the injured-P.W.1, he had gone to visit his grandmother at village Chattarpur, and on his way back to home, when he reached near Punia Pooja Sthan, near the Chaupal of the village, he saw the applicant. On seeing him, the applicant got enraged and started abusing him. The applicant attacked him with a knife, as a result of which he sustained injuries on different parts of his body. The other injured-P.W.2 was the brother of P.W.1. The applicant and others also attacked P.W.2 with a knife, as a result of which P.W.2 also sustained injuries on different parts of his body. Consequent to the registration of the FIR, the applicant was placed under suspension, vide order dated 15.6.1994. The order of suspension was revoked by the respondents, vide order dated 15.3.1996. After conclusion of investigation, the police submitted charge sheet. Thereafter the trial took place. The learned Additional Sessions Judge, New Delhi, vide his judgment dated 16.2.2006, convicted the applicant and sentenced him to undergo RI for 7 years and to pay fine of Rs.1000/- for commission of offence u/s 307 IPC, and, in default of payment of fine of Rs.1000/-, to undergo SI for two months. The applicant was also sentenced to undergo RI for 5 years and to pay fine of Rs.1000/- for the commission of offence under Section 326 IPC, and, in default of payment of fine of Rs.1000/-, to undergo SI for 2 months. After receipt of the said judgment dated 16.2.2006, the Disciplinary Page 2 of 10 3 OA 4265/14 Authority examined the whole matter in the light of Rule 11(3) of the Delhi Police(Punishment & Appeal)Rules, 1980 and decided to initiate departmental proceeding against the applicant under the Delhi Police (Punishment & Appeal) Rules, 1980. The Inquiry Officer conducted the enquiry and submitted his report on 18.10.2012 finding the charge as proved against the applicant. A copy of the enquiry report was furnished to the applicant. The applicant submitted his representation against the enquiry report. After considering the enquiry report, the evidence/materials available on record of enquiry, and the applicant's representation, the Deputy Commissioner of Police, 3rd Bn, DAP, New Delhi (Disciplinary Authority) passed an order dated 1.10.2013 imposing upon applicant the penalty of "forfeiture of four years of approved service permanently" entailing proportionate reduction in his pay. While so, the Hon'ble High Court of Delhi, vide judgment dated 5.3.2014, disposed of the Criminal Appeal filed by the applicant against the judgment of conviction and order of sentence passed by the learned Additional Sessions Judge. The operative part of the judgment dated 5.3.2014(ibid) is reproduced below:
"21. Accordingly, the appellant is convicted under Section 326 IPC.
22. The nominal roll of the appellant shows that he has suffered incarceration of 7 months. Keeping in view the fact that the offence relates to the year 1994 i.e. almost two decades old, the appellant having no other criminal background; having suffered agony of trial for almost 20 years and the appellant also not having abused the process of bail since his release; his conduct in jail also being satisfactory during the period when he was incarcerated, it would be in the fitness of things to modify the sentence. Accordingly, while sustaining the conviction of the appellant under Section 326 of the IPC, he is sentenced to Page 3 of 10 4 OA 4265/14 undergo RI for a period of 1 year. The fine of Rs.1000/- imposed under Section 326 of the IPC by the Sessions Judge shall remain unaltered. Bail bonds of the appellant are cancelled. Surety discharged. The appellant be taken into custody to serve his remaining sentence."
After receipt of the above judgment passed by the Hon'ble High Court of Delhi, the Deputy Commissioner of Police, 3rd Bn. DAP, New Delhi(Disciplinary Authority), who had passed the punishment order dated 1.10.2013(ibid) in the departmental proceeding initiated against the applicant under the Delhi Police (Punishment & Appeal)Rules, 1980, passed the impugned order dated 3.4.2014 under Rule 11(1) of the Delhi Police (Punishment & Appeal) Rules, 1980, removing the applicant from service with effect from 5.3.2014, i.e., the date of judgment passed by the Hon'ble High Court in the Criminal Appeal filed by the applicant. The appeal made by the applicant against the Disciplinary Authority's order dated 3.4.2014 was rejected by the Appellate Authority, vide order dated 26.8.2014. Hence, the present O.A. has been filed by the applicant, seeking the following reliefs:
"(i) To quash and set aside the impugned Order dated 03.04.2014 (A-1) and appellate authority order dated 26.08.2014 (A-2).
(ii) To declare the Disciplinary proceedings initiated against the appellant as unjustified and reinstate the applicant in service with all consequential benefits including arrears of pay.
(iii) To allow the O.A. with costs." 2. In the above context, it has been contended by
Mr.M.K.Bhardwaj, the learned counsel appearing for the applicant that the respondent-departmental authorities have acted arbitrarily and mala fide in Page 4 of 10 5 OA 4265/14 resorting to Rule 11(1) of the Delhi Police (Punishment & Appeal) Rules, 1980, and that when the Disciplinary Authority, after examining the judgment of conviction and sentence passed by the learned Additional Sessions Judge, had initiated the departmental proceedings under the Delhi Police (Punishment & Appeal) Rules, 1980 and had imposed on him the punishment of "forfeiture of four years of approved service permanently"
entailing proportionate reduction in his pay, and when the Hon'ble High Court, on appeal, altered the conviction and reduced the sentence as passed by the learned Additional Sessions Judge, there was no reason, far less justifiable reason, to invoke the provisions of Rule 11(1) of the Delhi Police (Punishment & Appeal) Rules, 1980 and to impose the punishment of removal from service for the selfsame accusation/act, more so when the earlier order of punishment, dated 1.10.2013, was subsisting. It has also been contended by Shri M.K.Bhardwaj that the impugned punishment of removal from service imposed by the Disciplinary Authority amounts to double jeopardy.
3. On the other hand, it has been contended by Mr.K.M.Singh, the learned counsel appearing for the respondents, that by passing the order dated 1.10.2013 in the departmental proceeding imposing upon applicant the punishment of "forfeiture of four years of approved service permanently"
entailing proportionate reduction in his pay, the disciplinary power did not get exhausted and action could be taken by the Disciplinary Authority under Rule 11(1) of the Delhi Police (Punishment & Appeal) Rules, 1980. Page 5 of 10 6 OA 4265/14 Considering the facts and circumstances of the case, particularly the judgment passed by the Hon'ble High Court on 5.3.2014, the Disciplinary Authority has rightly resorted to Rule 11(1) of the Delhi Police (Punishment & Appeal) Rules, 1980. Therefore, there is no infirmity in the impugned orders passed by the Disciplinary Authority and Appellate Authority. In support of his contention, Mr.K.M.Singh placed reliance on the decision of the coordinate Bench of the Tribunal in Sub Inspector Tariq Ali Khan Vs. Govt. of NCT of Delhi and others, OA No.747 of 2008, decided on 11.9.2014, and submitted that the instant O.A. is squarely covered by the said decision of the coordinate Bench. Thus, the present O.A. is liable to be dismissed.
3.1 In Sub Inspector Tariq Ali Khan Vs. Govt. of NCT of Delhi and others (supra), the allegations against the applicant were that on the morning of 11.9.1998, a lady passenger Era Gupta and her husband Deepak Gupta, both Indian natioals, approached Immigration, IGI Airport, as passengers of flight No.MK-745 bound for Mauritius and Singapore. They reported at Counter No.11 in Departure right side where the applicant was working as Immigration Officer. His shift was about to end. Instead of granting immigration clearance to Era and Deepak Gupta, the applicant tore the Visa page out of Era's passport and told them that her passport did not have Singapore visa and that the torn page amounted to an offence. He started threatening them. He kept the passengers at the counter for a long time and threatened that he would get a case registered against them, and Page 6 of 10 7 OA 4265/14 that they would be arrested. He extorted 500 US Dollars from them for not registering a case against them. He also told them to get themselves off loaded by claiming personal reasons and warned them not to say anything to anyone. However, the passengers later complained to the police, on which a case FIR was registered against the applicant under Sections 433/384/98 IPC and Section 12 P.P.Act. Thereafter, departmental proceeding was initiated and concluded as per procedure. The Disciplinary Authority, vide order dated 30.8.1999 imposed upon applicant the penalty of dismissal from service. On appeal, the Appellate Authority, vide order dated 20.1.2000, reduced the punishment of dismissal to that of forfeiture of two years approved service. Later, the applicant was convicted by the Criminal Court, vide judgment dated 12.2.2007. The Additional Sessions Judge, vide judgment dated 21.8.2007, dismissed the appeal as well. Thereafter, the applicant was dismissed from service vide order dated 9.1.2008 passed by the Disciplinary Authority in exercise of power conferred under Rule 11(1) of the Delhi Police (Punishment & Appeal) Rules, 1980 read with Article 311(2)(a) of the Constitution. The Appellate Authority also rejected the appeal. The Tribunal dismissed the O.A. filed by the applicant. In the writ petition, the Hon'ble High Court of Delhi set aside the Tribunal's order and remanded the matter back to the Tribunal for fresh adjudication. The Hon'ble High Court, while formulating the issue arising in the case, directed the Tribunal to keep in mind the legal issue at the time of fresh adjudication. The issue which was formulated by the Hon'ble High Court Page 7 of 10 8 OA 4265/14 was: Whether for the same act, in the context of it being a civil wrong, if penal action is taken, can for the criminality of the same act upon being convicted, power as per Rule 11(1) be exercisable or whether upon levying a penalty pertaining to the civil wrong element of the fact, the disciplinary power gets exhausted meaning thereby no action can be taken under Rule 11(1) of the Delhi Police (Punishment &Appeal)Rules, 1980. Accordingly, the Tribunal considered the O.A. afresh and answered the issue in the negative. Resultantly, the O.A. was dismissed by the Tribunal.
4. We have given our thoughtful consideration to the rival contentions.
5. Rule 11 of the Delhi Police (Punishment & Appeal) Rules, 1980, reads thus:
"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 cause 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.Page 8 of 10 9 OA 4265/14
(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."
6. In the instant case, as already noted, the applicant had preferred Criminal Appeal before the Hon'ble High Court of Delhi against the judgment of conviction and order of sentence passed by the learned Additional Sessions Judge. In view of the provisions contained in Rule 11(1) of the Delhi Police (Punishment & Appeal) Rules, 1980, an order either removing or dismissing the applicant from service consequent to the judgment of conviction and sentence passed by the learned Additional Sessions Judge could not have been passed under Rule 11(1) of the Delhi Police (Punishment & Appeal) Rules, 1980, till such time the result of the Criminal Appeal filed by the applicant was known to the Disciplinary Authority. But considering the nature and gravity of the offence, the Disciplinary Authority decided to take departmental action by initiating regular departmental proceedings against the applicant under Rule 11(3) of the Delhi Police (Punishment & Appeal) Rules, 1980 and imposed upon applicant the punishment of "forfeiture of four years of approved service permanently" during pendency of the Criminal Appeal filed by the applicant before the Hon'ble High Court. When the conviction of the applicant under Section 326 IPC was upheld by the Hon'ble High Court of Delhi in the Criminal Appeal filed by the applicant, the Disciplinary Authority again considered the nature and gravity of the offence and passed the impugned Page 9 of 10 10 OA 4265/14 order of removal from service with effect from 5.3.2014, i.e., the date of judgment passed by the Hon'ble High Court, by invoking the provisions of Rule 11(1) of the Delhi Police (Punishment & Appeal) Rules, 1980. No rule has been brought to our notice by Shri M.K.Bhardwaj, the learned counsel appearing for the applicant, which debars the Disciplinary Authority from exercising the power under Rule 11(1) of the Delhi Police (Punishment & Appeal) Rules,1980, in view of its having earlier exercised the power under Rule 11(3) of the Delhi Police (Punishment & Appeal) Rules, 1980 while initiating regular departmental action and imposing upon a convicted police officer the punishment during pendency of the Criminal Appeal filed by him/her. In the above view of the matter, we find no substance in any of the contentions of Shri M.K.Bhardwaj, the learned counsel appearing for the applicant.
7. Resultantly, the O.A. being devoid of merit is dismissed. No costs.
(PRAVEEN MAHAJAN) (RAJ VIR SHARMA)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
AN
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