Central Administrative Tribunal - Delhi
Azad Singh vs Delhi Transport Corporation, Govt. Of ... on 27 November, 2017
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA 4307/2015
Reserved on: 10.10.2017
Pronounced on: 27.11.2017
Hon'ble Mrs. Jasmine Ahmed, Member (J)
Hon'ble Mr. Uday Kumar Varma, Member (A)
Shri Azad Singh
S/o Late Shri Balbir Singh
Badge No. 19934, Token No.57967
R/o Village & Post - Sampla
District - Rohtak, Haryana ... Applicant
(Through Ms. Rashmi B. Singh, Advocate)
Versus
Delhi Transport Corporation
Indraprastha Estate,
New Delhi-110001
Through Its Chairman ... Respondent
(Through Shri Karunesh Tandon, Advocate)
ORDER
Mrs. Jasmine Ahmed, Member (J) This is the second round of litigation. The applicant on being convicted by a Criminal Court had been dismissed from service without holding any departmental inquiry invoking the provisions of Rule 19 of the CCS(CC&A) Rules, 1965. However, on being acquitted in the appeal, he made a representation to the respondents for his reinstatement in service which not having been 2 OA 4307/2015 disposed of, he moved the Tribunal in OA No.3786 of 2013, which was disposed of by the Tribunal by an elaborate order with the following directions:-
"In view of the aforementioned, the OA is disposed of with direction to respondents to decide the representation dated 29-07-2013 made by the applicant (Annexure B)_ as expeditiously as possible preferably with 12 weeks from the date of receipt of a copy of this order. It is made clear that while adjudicating the representation, the authority will not go in the correctness of the order dated 5-08-2002, as in the given circumstances, the order was correctly passed. The representation would be examined only to the limited extent of revisitng the said order in the wake of the order passed by the Hon'ble High Court in appeal. While doing so, the concerned authority will keep in view the charge against the applicant the applicant in the criminal case and his conduct in the said case."
2. The respondents, in pursuance of the aforesaid order considered the representation and rejected the case by the impugned order against which the applicant has preferred this O.A.
3. On issue of notice in the said OA, the respondents contested the same and in para 4 of the counter, they have contended as under:-
"It is pointed out that there is no provision/rules which provides the reinstatement of any of the employee after dismissal from the service on account of 3 OA 4307/2015 conviction in any criminal case, hence the representation put forth by the applicant is bad in law, however it is pointed out that as the acquittal was neither honourable nor on merits as the facts which leads to conviction there being some doubt on the version of the interference the accused person got benefit of doubt and acquitted. Therefore, it does not absolve applicant from the offence under section 302 read with section 34 of IPC. Accordingly answering respondent rightly rejected representation of the applicant."
The question is whether the above contention of the respondents is legally sustainable.
4. Admittedly, the criminal charge against the applicant is one of grave and serious in character, i.e. under Section 302 of the I.P.C. This conduct of the applicant led to his conviction by the Trial court and the respondents, on the basis of conviction had dismissed the applicant from service, which order has been certified as correct in the earlier judicial order dated 27-02-2015 in OA No. 3786/2013 of the Tribunal vide para 9 thereof (extracted above). Thus, there had been no departmental inquiry prior to dismissal of the applicant, which dismissal is purely on the ground of conviction.
5. When that conviction is set aside by the criminal appellate court, the acquittal could be either on merit 4 OA 4307/2015 basis or on technical ground. Nevertheless, the acquittal has to be recognized. But an acquittal by itself cannot preclude the respondents from taking any departmental action against the employee. The judgment of the Apex Court in the case of Union of India vs Purushottam (2015) 3 SCC 779 holds as under:-
"14. In R.P. Kapur v. Union of Indiathe question before the Constitution Bench was that the petitioner therein had been suspended owing to the pendency of criminal proceedings against him which was challenged on the anvil of Article 314 of the Constitution. Thus, this decision is not of much relevance for the resolution of the legal nodus before us, save for the observations that "if the trial of the criminal charge results in conviction, disciplinary proceedings are bound to follow against the public servant so convicted, even in case of acquittal proceedings may follow where the acquittal is other than honourable".
However, on this aspect of the law we need go no further than the recent decision in Inspector General of Police v. S. Samuthiram, since it contains a comprehensive discourse on all the prominent precedents. This Court has concluded, and we respectfully think correctly, that acquittal of an employee by a criminal court would not automatically and conclusively impact departmental proceedings:
14.1.Firstly, this is because of the disparate degrees of proof in the two viz. beyond reasonable doubt in criminal prosecution contrasted by preponderant proof in civil or departmental enquiries.
14.2.Secondly, criminal prosecution is not within the control of the department concerned and acquittal could be the consequence of shoddy investigation or slovenly assimilation of evidence, or lackadaisical if not collusive conduct of the trial, etc. 5 OA 4307/2015 14.3.Thirdly, an acquittal in a criminal prosecution may preclude a contrary conclusion in a departmental enquiry if the former is a positive decision in contradistinction to a passive verdict which may be predicated on technical infirmities.
In other words, the criminal court must conclude that the accused is innocent and not merely conclude that he has not been proved to be guilty beyond reasonable doubt."
6. The above decision thus confirms the power and authority of the respondents to proceed against the delinquent under the Departmental Proceedings acquittal in the criminal trial notwithstanding. Here, there is a disparate character in the order of acquittal, as explained in para 14.3 of the aforesaid judgment. If the Criminal court arrives at a positive decision in contradistinction to a passive verdict predicated on technical infirmities and holds that the accused is innocent and thus honourably acquits the accused, the dismissal on the ground of conviction would have to go and there shall be not only reinstatement, but also that the respondents cannot proceed departmentally against the individual. As against this proposition, if the acquittal is on the ground of certain technical aspects, such as benefit of doubt and the like, departmental proceedings against the individual cannot be a bar.
6OA 4307/2015
7. In the instant case, the decision of the Appellate court in the criminal appeal is as under:-
"This is a case where prosecution has put up two witnesses of the occurrence namely Ramphal (POW8) and Sanjay Kumar (PW9) but in our considered opinion, occurrence could not have taken place in the manner in which it has been described by the said witnesses because it has been stated by PW8 that the street in front of their house is 20 feet wide and while coming back from the house of Ram Singh, Sanjay and Rakesh were walking side by side who were ahead of PW8.
Om Parkash (deceased) was behind PW8 at a distance of 7-8 paces. At that time he did not see that the appellants were following him but when the deceased was taken in arms from the back side by Azad Singh (Appellant No. 1) and caught from the front side by collar by Anoop Singh (Appellant No. 2) he raised the alarm and attracted the attention of PW8 and others who rushed to save him. According to him, appellants had taken deceased to the left side of their house but till that time he was not strangulated. He further stated that when the orpe was putround the neck of the deceased, it was held by appellant No 2 (Anoop Singh), who was at the back of the deceased and appellant No 1 (Azad Singh) caught the deceased by the collar of his shirt. He and Sanjay Kumar caught Azad Singh. Rakesh caught Anoop Singh. The rope put around the neck of the deceased was without any knot. The hands of the deceased were not caught by anyone rather they were pressed between him and appellant No. 1 (Azad Singh). They did not cause any injury to Azad Singh (Appellant No. 1) and Anoop Singh (appellant No 2) during the occurrence rather Sanjay Kumar caused injury with Danda to Azad Singh but no injury to Anoop Singh. According to him no one came from theVillage at the spot despite commotion.
The aforesaid circumstances, mentioned by the alleged two witnesses are totally improbable tht two persons who were unarmed, in the presence of four members of the family of the 7 OA 4307/2015 deceased could strangulate the deceased, whose arms were free, within 1 ½ minutes and also run away from the spot despite the fact that one of the appellant (Azad Singh) was even caused injury by PW9. Moreover, according to the prosecution, appellant No. 2(Anoop Sngh), after his arrest produced rope from his pocket which too is highly improbable. There is a delay also in lodging the FIR.
Thus, keeping in view the aforesaid facts and circumstances order of conviction and sentence passed by the Learned Court below is found unsustainable and is accordingly set aside and the appeal is hereby allowed."
8. In this case, the judgment cannot be said to be one of honrouable acquittal, since the applicant has not been declared to be innocent or he has been falsely implicated. This is a case where the prosecution could not prove the case beyond doubt as the version of the prosecution was held to be highly improbable. In such cases, Departmental proceedings could take place without any fetter. Had such a proceeding taken place during the course of criminal trial and the same ended in dismissal of the applicant, it is for the respondents to review the penalty imposed in the wake of acquittal or to sustain the same on the basis of the findings arrived at in the departmental proceedings. If the dismissal from service was invoking the provisions of Rule 19(2) of the CCS(CC&A) Rules, 1965, without holding any inquiry, reinstatement is a must and it is left to the discretion of 8 OA 4307/2015 the respondents to initiate proceedings after reinstatement. Holding that the gravity of the offence being severe no inquiry is warranted and the applicant cannot be reinstated is certainly illegal, as such a conclusion deprives the applicant of his right to defend under the principles of natural justice.
9. In view of the above, the OA succeeds. The impugned order dated 02-07-2015 is quashed and set aside. It is declared that the applicant is entitled to reinstatement. The period during which he has been kept out of service would be regulated in accordance with the rules on the subject including F.R 53/54 as the case may be. The respondents are at liberty to initiate proceedings against the applicant in accordance with the relevant rules. Time calendared for compliance of the order of this Tribunal is two months from the date of receipt of a copy of the order.
(Uday Kumar Varma) (Jasmine Ahmed) Member (A) Member (J) /dkm/