Central Administrative Tribunal - Delhi
Parveen vs Comm. Of Police on 7 January, 2025
Item No. 28/C-2 1 OA No. 2429/2019
Central Administrative Tribunal
Principal Bench, New Delhi
O. A. No. 2429/2019
Today this the 07th day of January, 2025
Hon'ble Mr. R. N. Singh, Member (J)
Hon'ble Mr. B. Anand, Member (A)
Parveen, Grp 'C'
Constable (Ex.) in Delhi Police
PIS No. 28104890
Aged about 30 years
S/o Sh. Jai Pal Singh
R/o VPO : Majra,
Tehsil : Beri,
Distt : Jhajjar, Haryana ... Applicant
(By Advocate: Mr. Anil Singal)
Versus
1. Delhi Police
Through Commissioner of Police,
PHQ, IP Estate, New Delhi.
2. Joint C.P. (Traffic)
Toda Pur, New Delhi.
3. D.C.P. (Traffic/NR)
Through Commissioner of Police,
PHQ, IP Estate, New Delhi.
... Respondents
(By Advocate: Mr. Vivek Gupta)
Item No. 28/C-2 2 OA No. 2429/2019
ORDER (ORAL)
Hon'ble Mr. R. N. Singh, Member (J):
In the present OA, the applicant is aggrieved by findings dated 31.12.2014 (Annexure- A/1) of the enquiry officer in the departmental proceedings initiated against him, order dated 12.05.2015 (Annexure-A/2) passed by the Disciplinary Authority awarding punishment of forfeiture of two (02) years approved service permanently entailing proportionate reduction in the pay of the applicant i.e. Const. Parveen, No. 5925/T, Appellate order dated 06.01.2018 vide which the appellate Authority has rejected the applicant's Statutory appeal. The applicant has prayed for the following reliefs in the present OA:-
"1. To quash and set aside the impugned Findings dt. 31.12.2014, Order of punishment dt. 12.5.2015, Appellate Order dt. 6.1.2018
2. To direct the respondents to restore to the applicant their original service with all consequential benefits including seniority/promotion, arrears of pay and the period of suspension being treated as spent on duty for all intents and purposes.
2. To award costs in favour of the applicant and
3. To pass any order or orders, which this Hon'ble Tribunal may deem just & equitable in the facts & circumstances of the case."
Item No. 28/C-2 3 OA No. 2429/2019
2. The claim of the applicant has been contested by the respondents by way of counter reply and they have prayed for dismissal of the OA with cost.
3. We have heard learned counsels for the parties and with their assistance, we have perused the pleadings available on record.
4. In the departmental enquiry, the following charges were framed against the applicant:-
"I W/Inspr. Seema Sharma, TI/RSC charge you Ct. Parveen No. 5925/T that a case FIR No. 254/13 U/S 376-D/120-B/109IPC and 3, 4, 5 ITP Act PS Vikas Puri was registered on the complaint of Ms. Sonia D/o Sh. Mahender Kumar R/o H.No. D-55 C, D-Block, Tilak Vihar, New Delhi in which she alleged that she has been repeated sexual assaulted by Ajay, Satender and another man against her wishes on 08.08.2013 at a flat in Dwarka, Delhi. She was acquainted with Kiran Kalia W/o Ramesh Chand R/o WZ-19, Ram Nagar, Chowkhandi, Tilak Nagar who is pimp and the complainant was well known to her. On 08.08.2013 Kiran, Kalia contacted Sonia and ask her to accompany one man namely Ajay to spend one night with him for an amount of Rs. 3000/- out of which she was promised Rs 1500/-. Ajay and another man picked her up on a motorcycle from PVR Vikas Puri and reached a flat at Dwarka where she was sexually assaulted by 3 persons against her wishes.
Investigation of the above case was entrusted to W/SI Khiloni and the accused person (1) Kiran Kalia W/o Ramesh Chand R/o WZ-19, Ram Nagar, Chowkhandi, Tilak Nagar (2) You, Parveen S/ Sh. Jai Pal Ro VPO Majra P.S. Beri, Distt-Jhajjar, Haryana (3) Satender S/ Maahender R/o VPO Imlota, Tehsil- Charkhi Item No. 28/C-2 4 OA No. 2429/2019 Dadri,. Distt- Bhiwani, Haryana and (4) Ajay Gupta S/o Rajender Gupta R/o WZ-365, Tihar Village, Delhi were arrested on 09.08.2013 and sent to Judicial Custody. During the investigation it was raveled that you, Parveen are employed as constable in Delhi Police and were posted in Traffic Unit. Further in your discloser statement you Ct. Parveen reveled that you have sexually assaulted the victim against her wishes at Govt. Q. No. 52, Sec-16-B, Dwarka. The medical examination of the complainant and accused persons was got conducted and the exhibits have been sent to FSL for experts opinion.
The statement of Sonia was recorded U/S 164 Cr. PC. In which she stated that she had made the above complaint at the instance of accused Kiran Kalia. TIP proceedings were conducted. Accused Ajay refused to take part in the TIP proceedings. The complainant failed to recognize you Ct. Parveen and Satender during TIP proceedings and it appears that Victim/Complainant has been won over by accused persons were as during the investigation has come to light that You Ct. Parveen were involved in the offenses of rape and offenses under ITP Act as you have used your Govt. allotted flat for commission of the said offence.
The above act on the part of you Ct. Parveen No. 5925/T amounts to gross mis-conduct, moral turpitude and un-becoming of a police officer which renders you liable to be dealt with departmentally under the provisions of Delhi Police (Punishment & Appeal) Rules - 1980."
5. Vide the impugned findings, the enquiry officer reported the charges against the applicant as proved only to the extent that the applicant was arrested in the said case FIR, released on bail and his government allotted accommodation has been utilized for the omission and commission of the crimes. Subsequently, Item No. 28/C-2 5 OA No. 2429/2019 the Disciplinary Authority and the Appellate Authority have passed the impugned orders of penalty. The applicant was also put on trial in the case FIR no. 254/13 Offence u/s 3, 4 & 5 Immoral Traffic (Prevention) Act & 120 B/376D & Sec. 109 r/w 376D IPC and the learned Trial Court vide order/judgment dated 21.03.2017 acquitted the applicant for the offence u/s 3, 4 & 5 Immoral Traffic (Prevention) Act & 120 B/376D & Sec.
109 r/w 376D IPC. The applicant while approaching the Appellate Authority under the respondents has brought the order/judgment of the learned Trial Court dated 21.03.2017 with plea that for the charges as leveled against him in the departmental enquiry, he was put on trial by the prosecution before the learned Trial Court and he had already been acquitted from all such charges.
6. Mr. Anil Singal, learned counsel appearing for the applicant has argued that the departmental enquiry and the impugned disciplinary orders are vitiated on various grounds and more particularly, on the ground that once the applicant has been acquitted by the learned Trial Court for the offences and allegations as leveled against him in the departmental case, he was not to suffer any punishment in the departmental proceedings in the light of the provisions of Rule 12 of Delhi Police (Punishment & Appeal) Rules, 1980. In support of his argument, he has also placed reliance on the judgment of Item No. 28/C-2 6 OA No. 2429/2019 Larger Bench of this Tribunal in OA No. 2816/2008 titled Sukhdev Singh & Anr. Vs. Govt. of NCT of Delhi & Ors.
decided on 18.02.2011.
7. On the other hand, Mr. Vivek Gupta, learned counsel appearing for the respondent has vehemently opposed the claim of the applicant. He has argued that even if the applicant was not found guilty of the offences for which he faced trial before the learned Trial Court, the applicant was found to have been guilty of getting the government accommodation allotted in his name used for illegal purposes.
8. We have considered the submissions made by the learned counsels for the parties. Undisputed facts have already been noted herein above.
9. The Appellate Authority in the last but one paragraph of the impugned order dated 06.01.2018 (Annexure-A/3) has recorded that the applicant has claimed that he has since been acquitted in the rape case by the learned ASG (Spl. Fast Track Court) - 01, West, Tis Hazari Courts, Delhi vide order/judgment dated 21.03.2017 and has also appended a copy of such order/judgment. The Appellate Authority has further recorded that it is established beyond doubt that the applicant allowed the accused to misuse the Government Item No. 28/C-2 7 OA No. 2429/2019 accommodation, allotted in his name in violation of CCS (conduct) Rules, 1964.
10. The learned Trial Court vide the aforesaid order/judgment acquitted the applicant from the charges leveled against him and has observed in para 38 of the said order/ judgment:-
"38. In the present case allegations against present accused persons are that on the intervening night of 8/09.08.2013, all the accused persons namely Ajay Gupta, Satyinder and Praveen had committed sexual assault on the person of the prosecutrix in furtherance of their criminal conspiracy along with abatement of the commission of such crime by co-conspirator accused Kiran Kalia. Accused Parveen was also charged with the offence punishable under section 3 of Immoral Traffic (Prevention) Act, 1956 on the ground that he permitted his house i.e. flat no 52, Type II DG First, Sector 16 B Police Quarters Dwarka, New Delhi to be used as brothel for the purpose of sexual exploitation of the prosecutrix. The allegations against accused Kiran Kalia are that she entered into criminal conspiracy to make the prosecutrix indulge in prostitution forcibly and in furtherance of conspiracy, she sent the prosecutrix to the flat no 52, Type II DG First, Sector 16 B Police Quarters Dwarka, New Delhi along with accused persons, where accused Ajay, Praveen and Satyinder had committed sexual assault upon the prosecutrix."
11. We find force in the submission made by the learned counsel appearing for the applicant that there was no charge against the applicant that he permitted the Government accommodation allotted to him to be used by the co-accused Item No. 28/C-2 8 OA No. 2429/2019 for commission of the offences alleged against him and even the I.O. has not proved in his impugned report that the applicant permitted the Government accommodation to be utilized by the co-accused or anybody else for commission of offence under reference.
12. Learned counsel appearing for applicant places reliance upon Rule 12 of Delhi Police (Punishment & Appeal) Rules, 1980. Rule 12 reads as follows:-
"Rule 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 suspicious 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;"
13. In paras 5 to 9 of the Sukhdev Singh (supra), Larger Bench of this Tribunal has ruled as under:-
"5. Provisions of rules 11, 12 and 15, in our considered view, contain no express or implied bar for holding Item No. 28/C-2 9 OA No. 2429/2019 simultaneous criminal and departmental proceedings. Having held so, the only problem that still stares everyone is that if the criminal and departmental proceedings are held simultaneously, and if the departmental proceedings may culminate before the verdict is announced in the criminal proceedings, and in case where the subordinate rank is held guilty in departmental proceedings and is acquitted in the criminal case, and it is a case of clean acquittal, and is not on any of the grounds as have been mentioned in rule 12, and, therefore, departmental proceedings may not be permissible, how the situation shall have to be tackled. A subordinate rank can urge for putting the departmental proceedings on hold by saying that such proceedings are not competent, if his acquittal may be clean and none of the grounds may be available for which he can be put to a departmental enquiry, what shall happen to the order of punishment that may have already been passed sequel to the departmental proceedings. It is urged by the learned counsel representing the applicants that there is a possibility of clean acquittal and in such a situation when there may be a bar for departmental proceedings, the same need to be put on hold. We have pondered over the issue and after giving our serious thoughts to the contentions raised by the learned counsel as noted above, find that once there is no bar for holding simultaneous criminal and departmental proceedings, the departmental proceedings cannot be put on hold, even though some solution to this problem has to be found out. What clearly emerges from the provisions contained in rule 11 is that when the acquittal is clean, like it is not on technical grounds etc., no departmental proceedings would be held when the same may not have commenced earlier, but where an order in departmental proceedings may have preceded the judgment of acquittal in the criminal case and in the departmental proceedings the subordinate rank may have been found guilty, the departmental proceedings Item No. 28/C-2 10 OA No. 2429/2019 shall have to be re-visited, as that is how only the provisions of rule 11 can be read harmoniously with the settled law on the issue. Provisions of rule 11 are peculiar to subordinate ranks in Delhi Police governed by the Rules of 1980, but the situation as covered under rule 11 has been a matter of debate and would be covered by judicial precedents. In Capt. M. Paul Anthony v Bharat Gold Mines Ltd. [(1999) 3 SCC 679], where also the question was as to whether departmental proceedings and the proceedings in the criminal case launched on the basis of same set of facts can be continued simultaneously, in para 34 the Supreme Court held as under:
"34. There is yet another reason for discarding the whole of the case of the respondents. As pointed out earlier, the criminal case as also the departmental proceedings were based on identical set of facts, namely "the raid conducted at the appellant's residence and recovery of incriminating articles therefrom". The findings recorded by the enquiry officer, a copy of which has been placed before us, indicate that the charges framed against the appellant were sought to the proved by police officers and panch witnesses, who had raided the house of the appellant and had effected recovery. They were the only witnesses examined by the enquiry officer and the enquiry officer, relying upon their statements, came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case but the Court, on a consideration of the entire evidence, came to the conclusion that no search was conducted nor was any recovery made from the residence of the appellant. The whole case of the prosecution was thrown out and the appellant was acquitted. In this situation, therefore, where the appellant is acquitted by a judicial pronouncement with the finding that the "raid and recovery" at the residence of the appellant were not proved, it would be unjust, unfair and rather oppressive to allow the findings recorded at the ex parte departmental proceedings to stand."
Item No. 28/C-2 11 OA No. 2429/2019 In G. M. Tank v State of Gujarat & others [(2006) 5 SCC 446], the Supreme Court while taking the entire case law into consideration, including its judgment in Capt. M. Paul Anthony (supra), held that though the finding recorded in a domestic enquiry may have been found to be valid by the courts below, when there was an honourable acquittal of the employee during the pendency of the proceedings challenging his dismissal, the same requires to be taken note of. The facts of the case aforesaid reveal that the employee, sequel to a departmental enquiry was found guilty of the charge and vide order dated 21.10.1982 was dismissed from service as punishment. The order of dismissal was confirmed in a writ petition filed by him before the High Court, both by the learned single Judge and the Division Bench. Aggrieved, he filed an appeal. It is during pendency of the proceedings before the High Court, it appears, that he was honourably acquitted in the criminal proceedings vide order dated 30.1.2002, and even though he brought this fact to the notice of the Hon'ble High Court, yet, as mentioned above, his plea did not find favour either with the single Judge or the Division Bench of the High Court. As mentioned above, while taking into consideration the entire case law on the issue, the judicial pronouncement of acquittal of the employee which was honourable, was given precedence over the departmental proceedings. The appeal preferred by the employee in the Supreme Court was allowed. The observation that may be relevant while allowing the appeal, read as follows:
"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 Item No. 28/C-2 12 OA No. 2429/2019 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."
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 Item No. 28/C-2 13 OA No. 2429/2019 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 Hon'ble 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 Item No. 28/C-2 14 OA No. 2429/2019 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 Item No. 28/C-2 15 OA No. 2429/2019 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."
14. In view of the aforesaid facts and law, we are of the view that the impugned orders are in contradiction to the provisions of the Rule 12 of Delhi Police (Punishment & Appeal) Rules, 1980 as well as the judgment of Larger Bench of this Tribunal in the case of Sukhdev Singh (supra). Accordingly, the impugned orders of penalty deserve to be set aside.
15. In view of the aforesaid, the present OA is allowed with following directions:-
i. Impugned orders i.e. disciplinary order dated 12.05.2015 and appellate order dated 06.01.2018 are set aside;
ii. The applicant shall be entitled for all consequential benefits;
Item No. 28/C-2 16 OA No. 2429/2019
iii. The aforesaid direction shall be complied with by the
respondents as expeditiously as possible and preferably within six weeks of receipt of copy of this order; and
16. However, in the facts and circumstances, there shall be no order as to cost. Associated MA, if any, also stands disposed of accordingly.
(B. Anand) (R. N. Singh)
Member (A) Member (J)
/neetu/