Central Administrative Tribunal - Delhi
Sukh Pal vs Govt. Of Nct Of Delhi Through on 26 February, 2013
Central Administrative Tribunal Principal Bench OA No.594/2012 ORDER RESERVED ON: 15.01.2013 ORDER PRONOUNCED ON: 26.02.2013 Honble Mr. G. George Paracken, Member (J) Honble Mr. Shekhar Agarwal, Member (A) Sukh Pal, PIS No.28911113, Constable of Delhi Police, S/o Shri Om Prakash Tomar, R/o CA-88/2, Tagore Garden, New Delhi. -Applicant (By Advocate Shri Anil Singhal) -Versus- 1. Govt. of NCT of Delhi through Commissioner of Police, PHQ, IP Estate, New Delhi. 2. Special Commissioner of Police, Armed Police, PHQ, I.P. Estate, New Delhi. 3. DCP (3rd Bn. DAP), Vikas Puri, New Delhi-18. -Respondents (By Advocate Mrs. Sumedha Sharma) O R D E R Mr. G. George Paracken, Member (J):
The applicant in this Original Application has challenged the Annexure A-1 Inquiry Officers report dated 01.03.2011 holding the charge against him has been proved beyond doubt, Annexure A-2 order dated 05.05.2011 of the disciplinary authority imposing the punishment of forfeiture of two years approved service permanently entailing proportionate reduction in his pay and to treat his suspension period from 13.09.2002 to 23.07.2007 as period not spent on duty for all intents and purposes and the Annexure A-3 order of the Appellate Authority dated 23.11.2011 rejecting his appeal.
2. The brief facts of the case was that a departmental enquiry proceeding was initiated against the applicant vide order dated 14.05.2003. The summary of allegations against him was as under:-
SUMMARY OF ALLEGATIONS This is a finding into the D.E. against Ct. Sukhpal Singh No.1301/SD (now 2369/DAP) (PIS No.28911113) ordered vide order No.2596-610/SD (P-II) d. 14.5.03 and initially entrusted to Inspr. Satpal Chaudhary, RI/South Distt who prepared the summary of allegation, list of witness and list of documents and served upon the delinquent later the DE was entrusted to Inspr. Rakesh Kumar of DE Cell vide order No.13610-640/CA-II/DE Cell dt. 27.06.03 and then the DE file was entrusted to Inspr. B.S. Dahiya of DE Cell on 16.7.03 who examined there PWs. The DE file was kept in abeyance vide order No.331-346/SD (P-II) dt. 12.1.04. Now vide order No.12817-50/HAP (P-II) Bn DAP dt. 25.8.10 the DE has been reopened and marked to me for further enquiry vide order No.12128-132/CB/DE Cell dated 1.9.10. The contents of summary of allegation are as under:
It is alleged against Ct. Sukhpal No.1301/SD that a case was registered against him and his other associates vide FIR No.318/2002 dated 19.8.02 U/S 451/342/384/506 IPC Police Station DLF Gurgaon, on the allegation that Sh. Jagdish Chander Sharma S/o Late Pandit Shiv Charan Sharma, R/o F-714 Fistullah building, Jalvayu Towere, Sector-56, Gurgaon reported at PS DLF Gurgaon that on 14.8.02 he alongwith his family were present in his house at about 8 PM five young persons alongwith two ladies enterd in his house. You five disclosed your self as the staff from CIA and wanted to search his house. On the pretext of having information regarding flash trading in the premises. You and your associates demanded Rs.100000/- to hush up the matter and extorted Rs.16,000/- from the complainant and Rs.6000/- from his wife and two Samsung mobile phone bearing number 981185800 & 9810554929. Thereafter you and your other associates took the complainant alongwith his wife and son to Grater Kailash form where the wife of the complainant collected Rs.50,000/- from one Rupender Singh and handed over to you. You also threatened them not to lodge any complaint otherwise they would have to face dire consequences. You and your associates also asked then to keep remaining amount of Rs.40000/- which would be collected from them in a day or two. On 19.8.02 at about 6.15 PM your associates Ct. Harjinder Singh contacted them for the collection of the remaining amount where he was overpowered with the help of one security guard Ramesh Chand and handed him over to the local police of PS DLF Gurgaon. On interrogation your associate Ct. Harjinder Singh disclosed that he alongwith Ct. Surender Singh of PS Najafgarh, Ct. Sukh Pal Singh of South Distt. Cts Raj Singh and J.K. Sharma of Spl Cell/SB had exorted Rs.72000/- tow and to mobile phones form the complainant. The amount of extortion money was equally distributed amongs all the five associates. Ct. Harjinder Singh was arrested but all others were absconding and evading arrest. You Ct. Sukhpal No.1301/SD was marked absent vide DD No.19 dt. 20.08.02 and subsequently placed under suspension vide order No.8040/SD(P-II) dated 13.9.02 on having been involved in the case.
The above act on the part of you Ct. Sukh Pal No.1301/SD amounts gross misconduct, reprehensible, undesirable, unbecoming of a member of police force and violation of rule 3.1 (III) of CCS rule 1964 which renders you liable for departmental action punishable under of Delhi Police (Punishment and Appeal) Rules-1980.
3. Simultaneously, the criminal proceeding has also been initiated against him. However, the Respondents decided to keep the departmental enquiry proceedings in abeyance till the finalization of the criminal case vide order dated 12.04.2004 as both the proceedings were based on same set of facts. The said order is as under:
Since, the DE initiated against Const. Sukh Pal No. 1301/SD vide this office No. 2596-610/SD (P-II) dated 14.05.2003 is based on the similar facts are given in the criminal case, the departmental enquiry in respect of Const. Sukh Pal, No. 1301/SD is u/s 451/342/384/506 IPC, PS/DLF, Gurgaon, Haryana pending against him in view of provisions of Standing Order No. 125.
4. Subsequently, the Respondents on their own decided to re-open the departmental enquiry proceedings vide office order dated 25.08.2010 in view of their circular No. 1342/1408/RB/PHQ dated 22.09.2009. Later on, the Enquiry Officer submitted his findings on 01.03.2011 concluding therein that the charge against the applicant has been proved beyond doubt. The part of the said report relating to the discussion of evidence and conclusion is reproduced as under:-
DISCUSSION OF EVIDENCE:-
The main allegation against the delinquent Ct. Sukhpal Singh No.1301/SD (now 2369/DAP) case was registered against him and his other associates vide FIR No.318/2002 dated 19.8.02 U/S 451/342/384/506 IPC Police Station DLF Gurgaon, on the allegation that Sh. Jagdish Chander Sharma S/o Late Pandit Shiv Charan Sharma, R/o F-714 Fistullah building, Jalvayu tower, Sector-56, Gurgaon reported at PS DLF Gurgaon that on 14.8.02 he alongwith his family were present in his house at about 8 PM five young persons alongwith two ladies entered in his house. You five disclosed your self as the staff from CIA and wanted to search his house. On the pretext of having information regarding flash trading in the premises. You and your associates demanded Rs.100000/- to hush up the matter and extorted Rs.16,000/- from the complainant and Rs.6000/- from his wife and two Samsung mobile phone bearing number 981185800 & 9810554929. Thereafter you and your other associates took the complainant alongwith his wife and son to Grater Kailash form where the wife of complainant collected Rs.50,000/- from one Rupender Singh and handed over to you. You also threatened them not to lodge any complaint otherwise they would have to face dire consequences. You and your associates also asked then to keep remaining amount of Rs.40000/- which would be collected from them in a day or two. On 19.8.02 at about 6.15 PM your associates Ct. Harjinder Singh contacted them for the collection of the remaining amount where he was overpowered with the help of one security guard Ramesh Chand and handed him over to the local police of PS DLF Gurgaon. On interrogation your associate Ct. Harjinder Singh disclosed that he alongwith Ct. Surender Singh of PS Najafgarh, Ct. Sukh Pal Singh of South Distt. Cts Raj Singh and J.K. Sharma of Spl Cell/SB had exorted Rs.72000/- tow and to mobile phones form the complainant. The amount of extortion money was equally distributed amongs all the five associates. Ct. Harjinder Singh was arrested but all others were absconding and evading arrest. You Ct. Sukhpal No.1301/SD was marked absent vide DD No.19 dt. 20.08.02.
Four of the PWs viz Sh Jagdish Chander Sharma, S/o S/o Late Pandit Shiv Charan Sharma, R/o F-714 Fistullah building, Jalvayu tower, Sector-56, Gurgaon, Haryana mentioned at Sl No.1 in the list of witnesses, his son, his wife (Name not written in the list of witnesses and mentioned at Sl No.2 and 3 in the list of written and PW Sh Rajender Singh, Greater Kailash, New Delhi (incomplete address) as per the list of witnesses mentioned at Sl No.5 in the list of witnesses, who were to prove the allegation levelled against the delinquent related to case FIR No.318/03 U/S 451/342/384/506 IPC. Those PWs have not joined the DE proceeding despite issue of 12 reminder. Later it is learnt that PWs mentioned at SL No.1,2 and 3 are not residing at the address as given in the list of witnesses and they had shifted to their permanent address at Village Jia Sarai PS Vasant Vihar and as per the report of local police received from DCP/South Distt vide latter NO.11086/HAP/SD(P-II) dt 9.12.10 mentioning therein that the main complainant PW-1 expired some three year back and the whereabouts of other PWs, his family member are not known. In view of the above facts there is no possibility of their joining in future and to avoid unwanted delay and in exercise of provision of 16.3 of Delhi Police punishment and appeal Rules-1980 their evidence are dropped and the statement of main complaint PW-1 Sh Jagdish Chander and his statement the FIR was recorded has already been exhibited by PW-3 the IO of the case is brought on record. The delinquent has been informed accordingly.
3 PWs have been examined during DE proceeding i.e. PW-1 Narender Kumar No.723/SD, PW-2 ASI lal Singh No.232/and PW-3 SI Inderjet Singh were examined while previous statement of main complainant who has since been expired was brought on record. PW-1 HC Narender Kumar has proved vide Ex PW-1/A that Ct. Sukhpal Singh was marked absent vide DD No.19 dt. 20.08.02. PW-2 ASI Lal Singh has stated that present IO of the case is SI Inderjeet Singh PW-3 SI Inderjeet Singh has proved that a case FIR No.318 dt. 19.8.02 U/S 451/342/506 IPC PS DLF Section 29 Gurgoan Haryana posted in South Distt Line, marked absent vide DD NO.19 dt. 20.8.02 Ex PW-1/A and case FIR No.318/02 U/S 451/342/384/506 IPC was registered against the delinquent and other on 19.8.02 in which firstly his co-accused Harjinder was arrested on 19.08.02 who had disclosed the name of the delinquent Ct. Sukhpal Singh who was arrested by the local police of DLF Gurgoan and later on granted bail from the Honble Court. To rebut the charge the delinquent Ct. Sukhpal Singh had produced two DWs whose deposition are appeared to be tutored one and thus discarded. The main plea advanced by the delinquent that the charge has been framed on extraneous material and also the delinquent pleaded that opportunity to put cross with the complainant under Rule 16 (3) of the Delhi Police (Punishment and Appeal) Rules, 1980 was not given has no force as the complainant has since been expired and his earlier deposition in FIR No.318/02 was brought on record. Hence the plea advanced in his defence statement has no force. In view of these circumstances it has been established that the involvement and arrest of the delinquent in case FIR 318/02 is direct and can not be absolve from the allegation as contained in the charge.
Conclusion:-
In view of the above facts and circumstances and material adduced on file the charge against Ct. Sukhpal No.1301/SD(now 2369/DAP) is proved beyond doubt.
5. Meanwhile, the Judicial Magistrate, vide her judgment dated 24.1.2011, acquitted the applicant in this OA and two others stating that no cogent evidence against them came on file to prove the charges against them. The relevant part of the said judgment is as under:
In order to prove its case the prosecution has examined K.K. Chaudhary as PW1, Constable Nawab Khan as PW-2, Inspector Hari Kishan as PW-3.
The prosecution could not prove any incriminating evidence against the accused, the recording of statement of accused under section 313 Cr. P.C. was dispensed with.
After hearing learned APP for the state and learned defence counsel and going through the case file minutely, this court is of the considered view that the prosecution has failed to prove its allegations against the accused for the reasons hereinafter recorded:
PW1 is K.K. chaudhary he stated that on 14.8.2002 at around 8.00 PM he received a phone call from Ms. Sawaranlata Sharma who asked him that she urgently need Rs.50,000/- and he told her that he does not have this much of money. Later on he came to know that some person had come to their house and try to extort money. In his cross examination he stated that he does not know as to who had come to house of Mr. Sharma and nor police met him at any point of time and he never told police that Ms. Swaranlata had asked for money from him.
PW-2 is Constable Nawab Khan who stated that on 3.4.2004 he alongwith his constable Pawan Kumar I.O. was involved in the investigation of the present case. Accused Jai Kishan Sharma gave disclosure statement in his presence which is Ex. PW-2/A in which he had suffered disclosure as regards taking a sum of Rs.1,20,000/- from the complainant out of which Rs.40,000/- came to his share which is kept in his house at Delhi. Thereafter witness deposed that the accused is not present in the court. At this stage learned APP for the State stated that witness is suppressing the truth and he be declared hostile. At request learned APP for the State was allowed to cross examine him. In his cross-examination, he deposed that accused is not present in the court. In his further cross examination by learned counsel for accused he stated that no recovery was effected in his presence.
PW-3 is Hari Kishan who is formal witness and submitted the challan under Section 207 of Cr. P.C. after completion of investion (investigation-sic).
In the present case prosecution has failed to examine the complainant in order to prove the charges against the accused. Nor the wife of the complainant in whose presence alleged incident took place was examined.
The alleged recovery of money taken through extortion by the accused has also not been proved by the prosecution. Therefore no cogent evidence against the present accused have come on the file to prove the charges leveled against him.
In these circumstances and in view of the above discussion, it can safely be concluded that prosecution has not been able to establish its case against the accused and as such the accused in the present case is hereby acquitted of the charges framed against him. His bonds are discharged. Superdari be made absolute. File be consigned to record room after due compliance.
6. Accepting the aforesaid enquiry report and rejecting the representation of the applicant against it and ignoring the judgment of the Trial Court, the Disciplinary Authority vide its Annexure A-2 order dated 5.5.2011, imposed upon him the punishment of forfeiture of two (02) years approved service permanently entailing proportionate reduction in his pay. His suspension period from 13.09.2002 to 23.07.2007 has also been decided as period Not spent on duty for all intents and purposes and it was not to be regularized in any manner. By the Annexure A-3 order dated 23.11.2011, the Appellate Authority has rejected the appeal of the applicant against the aforesaid order of the Disciplinary Authority. The operative part of the said order reads as under:-
The appellant in his appeal has mainly pleaded that (i) the punishment order is defective, arbitrary and non speaking, (ii) he has been punished merely on suspicion or conjecture. There is no direct or indirect evidence against him to warrant this punishment. The facts have been twisted by the EO and proved the charge. The EO ignored that the appellant has been acquitted in the above said criminal case by Honble Court of Judicial Magistrate-Ist Class, Gurgaon vide his judgment dated 24.01.2011, (iii) punishment is too harsh, disproportionate and severe, without being any fault, (iv) he has been falsely implicated in the above said criminal case, (v) Jagdish Chander Sharma, his son, his wife and Sh. Rajender Singh, Greater Kailash have been mentioned in the list of witness who have to prove the allegations against the appellant but they have not been examined in the DE, (vi) he has been acquitted in criminal case by the Honble Court on merit, hence Rule 12 of Delhi Police (P&A) is not attracted, (vii) he has also cited court ruling and requested to set aside the punishment.
As per rule 24(3) of Delhi Police (Punishment & Appeal) Rules, 1980, an appeal against the order of the disciplinary authority can be filed within 30 days of the date of receipt of the original order. The disciplinary authority awarded punishment of forfeiture of two years service permanently to the appellant vide order dated 05.05.2011. The appellant received a copy of punishment order on 11.05.2011. He was required to submit his appeal up to 11.06.2011 but he preferred his appeal on 06.09.2011 after a gap of more than two and half months, which is time barred by limitation. Since the appellant did not care to file appeal within 30 days, hence, I see no reason to interfere with the punishment order. The appeal is rejected.
7. The applicant challenged the aforesaid impugned Enquiry Officers report and the orders of the Disciplinary as well as Appellate authorities in this OA on the following grounds:
5.1 Because the applicant was acquitted on merits by the court in case FIR No. 318 vide judgment dt. 24.1.2011 and the applicant after acquittal from the criminal case was entitled to all consequential benefits including seniority/promotion and arrears of pay as he has been honorably acquitted by the court in criminal case, the departmental enquiry ought to have been dropped. However, without considering the effect of acquittal illegally and in violation of Rule 12 of DP (P&A) Rules-1980, the enquiry proceedings were continued. In the similar facts and circumstances, the Honble High Court of Delhi given relief to the HC Laxmi Chand vide judgment dt. 9.9.2011 in WP No. 22584/05 and the case of the applicant is fully covered by this judgment.
5.2 Because the Appellate Authority ought to have condoned the delay in filing of appeal since neither the EO nor the DA had applied his mind to the fact of acquittal of the applicant from the same charges and judgment of acquittal in view of Rule 12. However, the Appellate Authority rejected the appeal on technical ground of delay causing miscarriage of justice and in this view of the matter, this Honble Tribunal has absolute power to condon the delay in filing of appeal and allow the OA when the matter is violation of mandatory Rule 12, as now held by the Full Bench of this Honble Tribunal in case of Sukhdev v/s GNCT. 5.3 Because the charges/allegations before the Criminal Court as well as departmental authorities are same and the witnesses as well as evidence in both the proceedings are same as such it will be in the interest of justice that the impugned orders are quashed and set aside since the defense of the applicant that he was falsely implicated in the criminal case has been accepted by the Criminal Court of Competent jurisdiction when the applicant was acquitted.
5.4 Because the applicant who was prosecuted on a criminal charge and was acquitted on merit cannot be subjected to a departmental punishment on the same facts again since as the court would not sit in judgment over the departmental enquiry as an appellate court, a departmental authority also cannot be permitted to sit in judgment over a court of law as if it were an appellate authority.
5.5 Because where the criminal court has already tried the applicant and acquitted him, the initiation/continuation/re-opening of departmental enquiry is improper once the applicant was honorably acquitted on the identical facts, evidence, and charges.
5.6 Because as per the judgment of the High Court of Delhi in Mohan Lal Vs Union of India 1982 (1) SLR 573 - Acquittal of a Govt. Servant on benefit of doubt is complete acquittal on merits and consequentially the concerned Govt. Servant shall be entitled to full pay and allowances. Therefore, the acquittal of the applicant is a complete acquittal on merits and initiation of the departmental enquiry on the same set of facts, evidence, and charges is liable to be set aside/quashed.
5.7 Because the DA/DE for proving the charges against the applicant has taken in to consideration the alleged earlier statement of PWs allegedly recorded during the investigation U/S 161 CrPC in preference to what he stated in criminal case or DE. Therefore, taking into consideration the alleged earlier statements in preference to the statements recorded during DE or criminal case is in violation of principles of natural justice and which would show that there was no evidence in DE by which guilt could be proved whereas when a DE under the provisions of Rule 16 (iii) of DP (P&A) Rules is conducted and witnesses are examined during the course of DE, their earlier statements carry no weight and cannot be relied upon to prove the charges. Thus, the whole inquiry is liable to be set aside/quashed.
5.8 Because till date no opinion has been expressed and formed by any authority that any of exceptions mentioned in Rule 12 is applicable, which is a condition precedent for invoking the power under Rule 12 of DP (P&A) Rules, 1980. Moreover, the witnesses had given the same statement before the criminal court. Therefore, when earlier statements are not admissible under Rules 15(3) and 16 (iii) of Delhi Police (Punishment & Appeal) Rules, 1980, holding of witnesses as won over is neither reasonable nor rational.
8. The applicant has, therefore, sought the following reliefs:
1. To quash and set aside impugned orders mentioned in Para-1 of the OA and direct the respondents to restore the applicants his original service and pay with all consequential benefits, including promotion/seniority and arrears of pay.
2. To award costs in favor of the applicant and pass any order or orders which this Honble Tribunal may deem just & equitable in the facts & circumstances of the case.
9. The Respondents in reply have reiterated the facts as stated by the Applicant and there were no disputes. However, according to them, the judgment of Honble High Court dated 23.01.2011 was examined in terms of Rule 12 of Delhi Police (Punishment & Appeal) Rules, 1980 and it was found that the criminal charge failed on technical grounds which was not an honourable acquittal and the case of the Applicant found fit to be proceeded further departmentally. Hence, the DE of the applicant was rightly re-opened by the disciplinary authority which is legal and justified. As per para-10 of SO No.A-20, there is no bar in proceeding with departmentally on identical set of facts. The learned counsel for the respondents Smt. Renu George has also argued that even though it has been stated in the order dated 25.10.2011 that the DE was re-initiated under Order 12 (a) but it was done looking into all aspects of Rule (12), which reads as under:
"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."
10. We have heard the learned counsel for the applicant Shri Anil Singhal and the learned counsel for the respondents Mrs. Sumedha Sharma. It is of course a well settled legal position that criminal case and departmental enquiry proceedings stand on different footing as a nature of evidence and standard of proof in both proceedings are different. But it was the Respondents own case that the departmental enquiry initiated against the Applicant on 14.05.2003 is based on similar facts contained in the criminal case and it was for the said reason that they themselves have kept the departmental proceedings pending vide their order dated 12.01.2004. They have taken the said decision rightly as the Apex Court has also held in Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. and Another JT 1999 (2) SC 456 as under:-
proceedings in a criminal case and the departmental proceedings can proceed simultaneously with a little exception. As we understand, the basis for this proposition is that proceedings in a criminal case and the departmental proceedings operate in distinct and different jurisdictional areas. Whereas in the departmental proceedings, where a charge relating to misconduct is being investigated, the factors operating in the mind of the Disciplinary Authority may be many such as enforcement of discipline or to investigate the level of integrity of the delinquent or the other staff, the standard of proof required in the those proceedings is also different than that required in a criminal case. While in the departmental proceedings the standard of proof is one of preponderance of the probabilities, in a criminal case, the charge has to be proved by the prosecution beyond reasonable doubts. The little exception may be where the departmental proceedings and the criminal case are based on the same set of facts and the evidence in both the proceedings is common without there being a variance.
11. Again in G.M. Tank Vs. State of Gujarat and Others 2006 (5) SCC 446, the Supreme Court held as under:-
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.
12. Therefore, the decision of the Respondents in reopening the departmental proceedings vide their Order dated 25.08.2010 was unwarranted. In any case, the Judicial Magistrate vide her judgment dated 24.01.2011 acquitted the Applicant of the charges framed against him. While passing the said judgment, the Learned Magistrate has stated in clear terms that the prosecution has not been able to establish its case against the Applicant. According to Rule 12 of the Delhi Police (Punishment & Appeal) Rules, 1980, 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. The only exceptions to the aforesaid rule are: (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. When the judgment in the criminal case has held in clear terms that the Applicant was acquitted of the criminal charges because the prosecution has not been able to establish its case against him or in other words, there are no evidence against him, strangely and in an arbitrary manner the Respondents took the view that the said judgment falls under Rule 12 (a) of the Delhi Police (Punishment & Appeal) Rules, 1980. In our considered view, such a view taken by the Respondents is quite perverse.
13. The Honble High Court of Delhi also in W.P. No.22584/2005 Commissioner of Police, Delhi Vs. H.C. Laxmi Chand decided on 09.09.2011 held as under:-
35. Consequently, the inferences on behalf of the petitioner in its order dated 17th May, 2001 invoking sub section (a) of Rule 12 of the Delhi Police (Punishment & Appeal) Rules, 1980 cannot be sustained and it cannot be held that the acquittal of the respondent was on technical grounds so as to give jurisdiction to the petitioner to re-open the departmental proceedings which were kept in abeyance on account of the pendency of the criminal case against the respondent on the same charges.
36. The next plea raised on behalf of the petitioner for reopening the departmental proceedings against the respondent was on the ground that the two witnesses who had turned hostile were won over by the respondent. There is no presumption in law that if a witness has turned hostile, he/she has been won over by the accused. In W.P.C.623/2009, titled as Govt. of NCT of Delhi and Others v. Jag Saran? decided on 25th May, 2005, it was held that the accused cannot be saddled with the liability of the prosecution witness turning hostile, nor it can be assumed that the accused won over the said witness unless there are cogent facts and circumstances on the basis of which such inferences can be drawn. In Manu/DE/2455/2009, Govt. of NCT of Delhi v. ASI Karan Singh, the accused was acquitted on account of lack of evidence in support of charges of rape against him as all the witnesses including the prosecutrix had not supported the prosecution case. The Disciplinary Authority, however, invoking the Rule 12 (b) of the Delhi Police (P&A) Rules, 1980 initiated the departmental proceeding on the premise that the witnesses had been won over by the accused. The High Court had held that there was no finding recorded by the criminal Court that the witnesses who had turned hostile had been won over by the accused nor was there any material before the Disciplinary Authority to come to the conclusion that the witnesses had been won over by the accused so as to invoke Rule 12 (b) of the Delhi Police (P&A) Rules, 1980 and in the circumstances, the disciplinary proceedings against the accused were quashed. In Khurshid Ahmad (Supra) the prosecutrix had turned hostile and refused to identify the charged officer and the other persons, who had allegedly sexually assaulted her. The prosecutrix who had turned hostile was cross examined by public prosecutor. The Court had held that normally the witnesses which are won over are given up by the prosecution and not produced in the Court; and a witness who is produced in the Court but does not support the case of the prosecution, is termed as a hostile witness?. The law permits such witness to be asked questions by the party producing him which are generally put by the opposing party. The evidence of a witness who has turned hostile cannot be discarded in its entirety merely on the ground that the witness turned hostile. The evidence of a hostile witness can still be relied upon, if otherwise found trustworthy. Therefore, a witness who turns hostile cannot be termed as a witness who has been won over. It was further held that such a witness is a witness who suppresses the truth and to elicit the truth, an opportunity is given to the opposing party to address questions in the nature of cross examination. Therefore, merely because a witness has turned hostile it does not lead to an inference that he had been won over by the opposing party unless there is finding to that effect by the competent Court or some other material to establish that fact. The order of the petitioners in the circumstances that the witnesses who had turned hostile had been won over cannot be sustained.
37. Considering the entirety of the facts and circumstances, this Court does not find any illegality, irregularity or un-sustainability in the order of the Tribunal dated 25.5.2005 setting aside the order dated 17th May, 2001 of the petitioners so as to interfere with the same in exercise of its jurisdiction under Article 226 of the Constitution of India. The writ petition is therefore, without any merit and it is dismissed. All the pending applications are also disposed of. The parties are, however, left to bear their own costs.
14. In the above facts, circumstances and settled legal position, we allow this Original Application. Consequently, we quash and set aside Annexure A-2 order dated 05.05.2011. Resultantly, we direct the respondents to restore to the Applicant his original service and pay with consequential benefits including promotion/seniority and arrears of pay. The aforesaid directions shall be complied with, within a period of two months from the date of receipt of a copy of this order. No costs.
(Shekhar Agarwal) (G. George Paracken) Member (A) Member(J) Rakesh