Central Administrative Tribunal - Delhi
Ved Prakash Sharma vs Govt. Of Nct Delhi on 10 April, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA 3469/2013
New Delhi this the 10th day of April, 2015
Honble Mr. A.K.Bhardwaj, Member (J)
Honble Mr. V.N. Gaur, Member (A)
Ved Prakash Sharma,
S/o Shri Ram Prakash Sharma,
R/o B-7/88, Sector-17,
Rohini, Delhi. Applicant
(By Advocate Shri Rakesh Tikku, Senior Advocate
with Ms. Harsh Lata )
VERSUS
Govt. of NCT Delhi
Through its Chief Secretary,
4th Level, C-Wing, Delhi Sachivalaya,
I.P.Estate, New Delhi-110002 Respondent
(By Advocate Mr. Vijay Pandita )
ORDER
Honble Mr. A.K.Bhardwaj, Member (J):
In her statement recorded at Police Station, Sameypur Badli on 16.02.2005 the victim, a student for class X revealed that she was taking tuition from Shri O.P.Sharma, TGT in Sarvodaya Kanya Vidyalaya, No.2, Raghubir Nagar, Tagore Garden, Delhi and on 12.02.2005 at about 7PM, he asked her to accompany him to get a certificate of X-class pass so that she could get service in Delhi Police and took her along with him from Keshopur stand in an Indica car No.DL3CW-0026 to Madhuban Chowk where one more person introduced to her as Principal of Rohini School, who was to issue her the certificate met them and for the said purpose she was asked to visit his office. He also accompanied the applicant inside the car and thereafter she was taken to PWD rest house, Badli where two persons were already present in a room in the rest house. On an indication given by Shri O.P.Sharma they made her to put off her clothes at the point of knife and thereafter first Sh. O.P.Sharma raped her and thereafter the said three persons including Shri Ved Prakash Sharma committed her rape. She was kept in the rest house for the whole night. On 13.02.2005 at about 7PM she was made to sit in the car and was dropped near Keshopur bus depot with the threat to not disclose about the incident to any one, otherwise she and her family could be killed. Nevertheless, the applicant disclosed the incident to her mother and thereafter she along with her mother went to the Police Station, Sameypur Badli on 16.02.2005 to lodge the report.
2. In the wake of the statement made by the victim, FIR no.107/05 under section 376/106/34 IPC was registered on 17.02.2005 at Police Station, Sameypur Badli. During the investigation, the accused Sh.Om Prakash Sharma was arrested, the indica car used to transport the victim was seized and at the instance of Shri Om Prakash Sharma, Shri Ved Prakash Sharma, i.e. the applicant, herein, and Shri Jagdish were arrested. The accused pointed out the place of incident. The bed sheet used at the time of incident was seized. All the four accused were got medically examined and the samples of semen and blood were preserved. On 19.02.2005, the statement of victim was recorded before Smt. Archna Sinha, Metropolitan Magistrate under Section 164 Cr.PC. Another accused, Sh Pratap Singh found involved in the incident was also arrested on 24.05.2005. Nevertheless, in view of hostile deposition by the victim, her mother and Chowkidar of the rest house and in view of the fact that there was no other evidence that links the applicant herein with the offence, giving him the benefit of doubt, the Court of ASJ-06 (OUTER), Rohini, Delhi acquitted him of the charges under section 376G/506/34 IPC. With the view that the applicant was not acquitted of the charges honorably and the statement made by the victim under section 164 of Cr. PC, her mother and Mr.Hanuman Singh, Chowkidar, supported the charges, the Chief Secretary, Delhi ordered dismissal of the applicant from service under Rule 19 (ii) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. The order was challenged by the applicant before the appellate authority and having reversed the order passed by the disciplinary authority, the appellate authority remitted the matter back to it with liberty to initiate departmental proceedings under Rule 14 of CCS (CCA) Rules, 1965 and complete the proceedings within specific time limit. Para 7 of the order of Appellate authority read thus:
7. Now therefore, Lt. Governor Delhi hereby sets aside the impugned order dated 28.02.2012, without going into merits of the case, and remands the case back to Disciplinary Authority, Chief Secretary, with liberty to initiate Disciplinary Proceedings under Rule 14 of CCS (CCA) Rules, 1965 and complete the proceedings in a time bound manner. The intervening period, between the date of dismissal and the date of reinstatement consequent to implantation of this order, will be considered as on deemed suspension, entitling Shri Ved Prakash Sharma to the minimum subsistence allowance prescribed under FR 53, from the date of his dismissal. The Disciplinary Authority may decide further continuation of his suspension during pendency of Disciplinary Proceedings.
3. Thus, the disciplinary authority issued memorandum no.F.5/06/2005/DOV/4604 dated 7.05.2013 (AnnexureA) which reads thus-
The Chief Secretary, Delhi proposes to hold an inquiry against Shri Ved Prakash Sharma, Vice Principal, under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. The substance of the imputation of misconduct or misbehaviour in respect of which the inquiry is proposed to be held is set out in the enclosed statement of articles of charge (Annexure-1). A statement of the imputation of misconduct or misbehaviour in support of each article of charge is enclosed (Annexure-II). A list of documents by which, and a list of witnesses by whom, the articles of charge are proposed to be sustained are also enclosed (Annexure-III and IV).
Sh. Ved Prakash Sharma, Vice Principal is directed to submit a written statement of his defence within 10 days of the receipt of this memorandum and also to state whether he desires to be heard in person.
He is informed that an inquiry will be held only in respect of those articles of charge as are not admitted. He should, therefore, specifically admit or deny each article of charge.
Sh. Ved Prakash Sharma Vide Principal, is further informed that if he does not submit his written statement of defence on or before the date specified in para 2 above, or does not appear in person before the inquiring authority or otherwise fails or refuses to comply with the provisions of Rule 14 of the CCS (CCA) Rules, 1965, or the orders/directions issued in pursuance of the said rule, the inquiring authority may hold the inquiry against him ex-parte.
Attention of Sh. Ved Prakash Sharma, Vice Principal, is invited to Rule 20 of the Central Civil Services (Conduct) Rules, 1964, under which no Government servant shall bring or attempt to bring any political or outside influence to bear upon any superior authority to further his interest in respect of matters pertaining to his service under the Government. If any representation is received on his behalf from another person in respect of any matter dealt with in these proceedings, it will be presumed that Sh. Ved Prakash Sharma, Vice Principal, is aware of such a representation and that has been made at his instance and action will be taken his for violation of Rule 20 of the CCS (Conduct) Rules, 1964.
The receipt of the Memorandum may be acknowledged.
4. In the circumstances, applicant filed the present OA, praying therein:-
(A) It is respectfully prayed that this Honble Tribunal may graciously be pleaded to quash the Charge Memo. No. F.5/06/2005/DOV/4604 dated 7-5-2013 and grant promotion from the date when juniors to the applicant have been promoted.
(B) That this Honble Tribunal may further graciously be pleaded to direct the Respondent to release the retrial benefits of the applicant such as GPF, Gratuity, Pension, Pension Commutation, Leave Encashment and GIS along with interest @ 12% per annum.
(C) That this Honble Tribunal may graciously be pleased to direct the Respondent to determine the monthly pension payable to the applicant by treating that the applicant was reinstated in service on the date of his superannuation.
(D) That this Honble Tribunal may graciously be pleased to direct the Respondent to pay full pay and allowances to the applicant for the entire period of suspension i.e. from 18.02.2005 to 22-2-2006 and 10.1.2007 to 31.5.2013 ( the date of his retirement).
(E) That this Honble Tribunal may further graciously be pleased to direct the respondent to grant the applicant benefits of VI-Pay Commission while fixing his pay and allowances as well as the pension.
(F) That this Honble Tribunal may graciously be pleased to award costs of the present litigation to the applicant.
(I) Any other or further order or orders more than one nature as this Honble Tribunal may feel deem fit and proper in the interest of justice. Of the various grounds mentioned in para 5 of the OA, Mr. Rakesh Tikku, Senior Advocate, during the course of arguments espoused that:
(i) Though the department can proceed parallelly and independently against the delinquent but after acquittal of the delinquent from the criminal charge, the subsequent proceedings by the department by issuing a charge memo in respect of the allegations found not proved in the criminal case is not permissible, except in a case where the disciplinary authority has an evidence different from one examined by the Trial Court in the criminal proceeding.
(ii). Once the criminal court did not find any evidence to held the charge against the applicant proved, in the absence of new/different evidence, it is not open to the disciplinary authority to proceed against the applicant departmentally.
(iii). The charge against the applicant pertained to the year 2005-2006 and the proceedings instituted against him now vide impugned Charge Memo. No. F.5/06/2005/DOV/4604 dated 7-5-2013 are vitiated being time barred.
(iv). As has been ruled by this Tribunal in a batch of OAs including OA 2537/2011 (Devender Vs. Commissioner of Police and Ors), there is no concept in Cr. PC like honourable acquittal or an acquittal on benefit of doubt and if the Court competent to try an offender for committing offence acquitted him, the presumption is that it could not find any evidence/documents or material on record to find such person guilty.
Finally, he relied upon the following judicial precedents:
(1) Honble Delhi High Court judgment in W.P (C) 22584/2005 (Commissioner of Police, Delhi Vs. H.C. Laxmi Chand).
(2) Honble Madras High Court judgment in W.P (MD) No. 3898/2008 (N.Ramakrishnan Vs. The Deputy Inspector General of Police, Tirunelveli Range).
(3) Judgment of Tribunal in OA No. 89/2014 (Harbajan Singh Vs The Secretary, Ministry of Telecommunication & Broadcasting and Ors).
(4) Judgment of Tribunal in OA no. 1750/2011 with connected OAs 878/2011 and 2537/2011 (Devender Vs. Commissioner of Police)
5. On the other hand, learned counsel for respondents submitted that the institution of departmental proceeding against an individual for the same act of omission or commission which formed subject matter of the criminal trial is not hit by Article 20 of the Constitution. He placed reliance upon the following judgments of Honble Supreme Court and this Tribunal.
1. State of Bihar Vs. Murad Ali Khan and Others (1988) 4 SCC 655).
2. Sangeetaben Mahendrabhai Patel Vs. State of Gujarat and Another ( 2012)7 SCC 621)
3. Noida Entrepreneurs Association Vs. Noida and Others ( 2007) 10 SCC 385)
4. Union of India and Others Vs. Sunil Kumar Sarkar ( 2001)3 SCC 414)
5. Commissioner of Police, New Delhi Vs. Mehar Singh ( 2013) 7 SCC 685)
6. OA 747/2008 ( Sub Inspector Tariq Ali Khan Vs. Govt. of NCT of Delhi)
6. We heard counsels for parties and perused the record. Indubitably, the charge leveled against the applicant in terms of the impugned memorandum is not only grave but wild. There cannot be worsting moral act than the one of the rape of a student by a teacher and a Principal. Given a choice, we could have dismissed the OA in the wake of nature of charges itself. Nevertheless, the charge is only a formal accusation and need to be proved before making a person to suffer the consequences thereof.
7. In Union of India and others Vs. K.V. Jankiraman and others (1991) 4 SCC 109), Honble Supreme Court could take a view that the mere seriousness of allegation cannot be ground to even deny promotion to an employee. Para 16 of the judgment read thus:
16. On the first question, viz., as to when for the purposes of the sealed cover procedure the disciplinary/criminal proceedings can be said to have commenced, the Full Bench of the Tribunal has held that it is only when a charge-memo in a disciplinary proceedings or a charge-sheet in a criminal prosecution is issued to the employee that it can be said that the departmental proceedings/criminal prosecution is initiated against the employee. The sealed cover procedure is to be resorted to only after the charge-memo/charge-sheet is issued. The pendency of preliminary investigation prior to that stage will not be sufficient to enable the authorities to adopt the sealed cover procedure. We are in agreement with the Tribunal on this point. The contention advanced by the learned counsel for the appellant-authorities that when there are serious allegations and it takes time to collect necessary evidence to prepare and issue charge-memo/ charge-sheet, it would not be in the interest of the purity of administration to reward the employee with a promotion, increment etc., does not impress us. The acceptance of this contention would result in injustice to the employees in many cases. As has been the experience so far, the preliminary investigations take an inordinately long time and particularly when they are initiated at the instance of the interested persons, they are kept pending deliberately. Many times they never result in the issue of any charge-memo/charge-sheet. If the allegations are serious and the authorities are keen in investigating them, ordinarily it would not take much time to collect the relevant evidence and finalise the charges. What is further, if the charges are that serious, the authorities have the power to suspend the employee under the relevant rules, and the suspension by itself permits a resort to the sealed cover procedure. The authorities thus are not without a remedy. It was then contended on behalf of the authorities that conclusions Nos. 1 and 4 of the Full Bench of the Tribunal are inconsistent with each other. Those conclusions are as follows:
"(1) consideration for promotion, selection grade, crossing the efficiency bar or higher scale of pay cannot be withheld merely on the ground of pendency of a disciplinary or criminal proceedings against an official;
(2)...................................................
(3).......................................
(4) the sealed cover procedure can be resorted only after a charge memo is served on the concerned official or the charge sheet filed before the criminal court and not before;"
8. In the present case, two salient grounds raised by the learned counsel for the applicant to challenge the impugned memo. of charges are:
(i) The respondent do not have any material/evidence different from one examined by the Trial Court against the applicant, thus he cannot be proceeded against departmentally.
(ii) There is inordinate delay in issuance of charge sheet.
As far as the first ground is concerned, of course, in N.Ramakrishnan Vs. Deputy Inspector General of Police, Tirunelveli Range, Tirunelveli (W.P (MD) No.3898/2008), Honble Madras High Court could take a view in a case where the criminal case ends of with acquittal of the delinquent, departmental proceedings could be initiated if the department intended to adduce any evidence which is in its power and possession to prove the charges against the delinquent officer. Para 13 of the judgment wherein a reference has been made to the judgment of Honble Supreme Court reported in 2008 (4) SCC 1) read thus:-
13. In Honble Supreme Court in a decision reported in 2008 (4)SCC 1 (as cited supra) held as follows:-
29. There cannot be any doubt whatsoever, as has been submitted by the learned Additional Solicitor General, that initiation of departmental proceedings is permissible even after the judgment of acquittal is recorded by the criminal court. But the same would not mean that a proceeding would be initiated only because it is lawful to do so. A departmental proceeding could be initiated if the Department intended to adduce any evidence which is in its power and possession to prove the charges against the delinquent officer. Such a proceeding must be initiated bonafide. The action of the authority even in this behalf must be reasonable and fair.
35. It is not a case where a mere benefit of doubt had been given to the respondent in the criminal proceeding. The criminal court has given a positive finding that the prosecution has not been able to prove that the accused had misappropriated the goods.
9. In the present case, we gave repeated opportunity to respondents to indicate the evidence in its power and possession intended to be adduced in the departmental proceedings, but despite opportunities no such material/evidence was indicated by them. However, as has been provided in Rule 14 (15) of CCS (CCA) Rules, 1965, the Inquiring Authority may, in its discretion allow the Presenting Officer to produce evidence not included in the list given to the Government servant or may itself call for new evidence or recall and re-examine any witness. The Rule read thus:-
14 (15). If it shall appear necessary before the close of the case on behalf of the Disciplinary Authority, the Inquiring Authority may, in its discretion, allow the Presenting Officer to produce evidence not included in the list given to the Government servant or may itself call for new evidence or recall and re-examine any witness and in such case the Government servant shall be entitled to have, if he demands it, a copy of the list of further evidence proposed to be produced and an adjournment of the inquiry for three clear days before the production of such new evidence, exclusive of the day of adjournment and the day to which the inquiry is adjourned. The Inquiring Authority shall give the Government servant an opportunity of inspecting such documents before they are taken on record. The Inquiring Authority may also allow the Government servant to produce new evidence, if it is of the opinion that the production of such evidence is necessary in the interests of justice.
10. In view of the aforementioned provision made in CCS (CCA) Rules, merely because an evidence/material different from one examined by the Trial Court in the criminal case is not mentioned in the list of documents enclosed with the memo of charges as Annexure-III, we cannot presume that the disciplinary authority was not in a position to adduce some evidence/ material in the enquiry proceedings. Though, during the pendency of the OA, the Inquiry Officer could complete the enquiry and prepared its report, which is part of the record produced before us. But, since the report is not under challenge in the present OA, it would not be proper for us to comment upon its validity and propriety. In the circumstances, particularly the developments, could take place during the pendency of the OA, we are of the view that before passing the final order, the disciplinary authority should give due regard to the aforementioned judgment of Honble Madras High Court.
11. As far as the plea of delay raised by the learned senior counsel for the applicant is concerned, in view of the law declared by Honble Supreme Court in the case of Government of Andhra Pradesh and Others Vs. V. Appala Swamy ( 2007) 14 SCC 49), such plea can also be examined by the Inquiry Officer/Disciplinary authority. Relevant excerpt of the judgment read thus:-
12. So far as the question of delay in concluding the departmental proceedings as against a delinquent officer is concerned, in our opinion, no hard-and-fast rule can be laid down therefor. Each case must be determined on its own facts. The principles upon which a proceeding can be directed to be quashed on the ground of delay are:
(1) where by reason of the delay, the employer condoned the lapses on the part of the employee.
(2) where the delay caused prejudice to the employee.
Such a case of prejudice, however, is to be made out by the employee before the inquiry officer.
12. As far as the permissibility of initiation of disciplinary proceedings after acquittal in criminal case is concerned, in N. Ramakrishnan Vs. Deputy Inspector General of Police, Tirunelveli Range, Tirunelveli (ibid), the Madras High Court itself has ruled that irrespective of the verdict of criminal Court either acquittal or his conviction, the department can proceed with the departmental enquiry in respect of the charges leveled against the officer. Para 9 to 12 of the judgment read thus:-
9. A bare perusal of the first charge shows that the facts leading to the initiation of the criminal proceedings as well as the facts leading to the framing of the first charge are one and the same and in fact, the very first charge refers the very same criminal case in Cr.No.261 of 2004, as the basis of framing the first charge. It is also not the case of the respondent/department that the impugned first charge deals with different set of facts and circumstances. No doubt, the department can proceed parallely and independently against the delinquent. But, in this case, it is not the parallel but only a subsequent proceedings by the department by issuing the impugned charge memo after a period of two years from the date of the criminal Court's decision. Therefore, once the criminal Court had found the delinquent not guilty and acquitted him, what would be the effect of such judgment on the departmental proceedings, is the core issue to be considered by this Court insofar as the first charge is considered.
10. At this Juncture, the following decisions relied on by the learned Senior Counsel on this aspect are relevant to be quoted. In 2006(2) MLJ 489 (as cited supra), the learned Single Judge of this Court found that the departmental proceedings cannot be continued after the criminal Court's acquittal on merits, especially when the charge is one and the same in both the proceedings. The relevant portions of the said judgment are extracted hereunder:- " 8. ... The crux of the issue is when the facts and evidence in the criminal proceeding and departmental proceeding are same, the department will not be justified in pursuing the departmental proceeding after acquittal in the case... "
9. ... It is not in dispute that irrespective of the verdict of the criminal Court, either acquittal or conviction, undoubtedly, the Department can proceed with the departmental enquiry in respect of the charges levelled against the officer. However, if the criminal Court acquitted the very same person on merits, on the ground that the charges framed against him had not been proved, the Department cannot ignore the said order of acquittal. It cannot be expected that all cases in criminal proceedings on the very same set of facts will end in acquittal and the departmental action should not be proceeded with. It is settled law that if the acquittal in the criminal proceedings is not an honourable one, it is always open to the Department to proceed with the departmental proceedings or enquiry. An honourable acquittal would only mean an acquittal which is free from any doubt...."
10. Applying the proposition laid down in the above referred Division Bench decisions of this Court to the facts of this case, as the charges is one and the same in both the criminal case and in the departmental proceeding and in view of the fact that the criminal Court acquitted the petitioner on merits, it is not desirable on the part of the respondents to proceed with the departmental proceeding."
11. In 2006(1) MLJ 169 (as cited supra), the Hon'ble Division Bench of this Court at paragraph 5 had held as follows:-
"Acquittal of the accused by a Judicial Magistrate, therefore, does not ipso facto absolve him from the liability under the disciplinary jurisdiction of the Revenue administration. The contention that since he was acquitted by a Criminal Court, the department is completely debarred to proceed with the enquiry cannot be accepted. However, as observed in M.Paul Anthony v. Bharat Gold Mines Limited, A.I.R. 1999 S.C. 1416, since the facts and the evidence in both the proceedings viz., departmental proceedings and the criminal case were the same, without there being an iota of difference, the distinction which is usually drawn as between the departmental proceedings and the criminal case on the basis of approach and burden of proof, would not be applicable. In the case on hand, the facts and the evidence in both the proceedings, viz., departmental and criminal were the same and in view of acquittal of the criminal case on merits, we are of the view that the Revenue administration is not justified in pursuing the departmental enquiry."
12. In 2006(1) MLJ 146 (as cited supra), the Hon'ble Division Bench of this Court considered the very same issue and held as follows at paragraph No.4:-
4. ..... Inasmuch as the charges both in the departmental enquiry and in the criminal case are one and the same, and the criminal Court acquitted the accused on merits, we are of the view that the disciplinary authority and the Tribunal ought to have focussed their attention to the verdict of the criminal Court and considered the same before passing the order. As a matter of fact, the Tamil Nadu Police Standing Orders and the instructions by the Government make it clear that if the charge in the departmental enquiry and the criminal case are identical, the dismissal of the criminal case acquitting the accused on merits is to be considered by the Department before proceeding further. We are satisfied that inasmuch as the charge in the departmental enquiry and the grounds leading to the prosecution of the accused is on the same set of facts and in view of the fact that the criminal case ended in honourable acquittal on merits even as early as on 2.11.1995, the disciplinary authority and the Tribunal ought to have considered the same before proceeding further. We are satisfied that the petitioner has made out a case for interference."
Also in Union of India and Others Vs. Sunil Kumar Sarkar (2001) 3 SCC 414), relied upon by the counsel for applicant, it could be held thus:
11. Before concluding we must point out that during the course of arguments, a doubt was raised as to the maintainability of the concurrent proceedings initiated against the respondent by the authorities. The respondent in this case has been punished for the same misconduct both under the Army Act as also under the Central Rules, 1965. Hence, a question arises whether this would tantamount to 'double jeopardy' and is in violation of Article 20 of the Constitution of India. Having considered the arguments addressed in this behalf, we are of the opinion that so far as the concurrent proceedings initiated by the Organisation against the respondent both under the Army Act and the Central Rules are concerned, they are unexceptionable. These two proceedings operate in two different fields though the crime or the misconduct might arise out of the same act. The Court-Martial proceedings deal with the penal aspect of the misconduct while the proceedings under the Central Rules deal with the disciplinary aspect of the misconduct. The two proceedings do not overlap. As a matter of fact, Notification No. SRO-329 dated 23-9-1960 issued under the Central Rules and under sub-sections (1) and (4) of Section 4 of the Army Act makes this position clear. By this notification, the punishments that could be meted out under the Central Rules have been taken out of the purview of the Court-Martial proceedings under the Army Act. We further find support for this view of ours in the judgment of this Court in R. Viswan v. Union of India, AIR 1983 SC 658.
13. In view of the aforementioned, the OA is disposed of with direction to respondent to keep in view the law declared by the Madurai Bench of Honble Madras High Court in WP (MD) N0.3898/2008 and the plea of delay raised on behalf of applicant while passing the final order in the disciplinary proceedings initiated against the applicant. It goes without saying that, in the event of survival of his grievance after the order of disciplinary authority, it would be open to applicant to work out his remedy in accordance with law. No costs.
( V.N.Gaur) (A.K.Bhardwaj) Member (A) Member (J) sk