Central Administrative Tribunal - Delhi
Constable Raj Pal Singh vs The Commissioner Of Police on 10 March, 2011
Central Administrative Tribunal Principal Bench O.A. No. 2064/2010 New Delhi, this the 10th day of March, 2011 Honble Mrs. Meera Chhibber, Member (J) Honble Dr. A.K. Mishra, Member (A) Constable Raj Pal Singh S/o Shri Padam Singh Age 48 years R/o Village Rampur, Sector-126, Noida, District Gautambudh Nagar, Uttar Pradesh. .Applicant By Advocate: Shri Sachin Chauhan. Versus 1. The Commissioner of Police Police Headquarter, MSO Building, I.P. Estate, New Delhi. 2. Additional Commissioner of Police South District, Through Commissioner of Police, Police Headquarters, I.P. Estate, MSO Building, New Delhi. 3. Additional Deputy Commissioner of Police, South District, Through Commissioner of Police, Police Headquarters, I.P. Estate, M.S.O. Building, New Delhi. 4. Shri Ranjay Atrishya Enquiry Officer, Through Commissioner of Police, Police Headquarters, I.P. Estate, MsO Building, New Delhi. Respondents By Advocate: Mrs. P.K. Gupta. O R D E R By Honble Mrs. Meera Chhibber, Member (J) :
Applicant has challenged order dated 28.4.2010 (page 11) whereby the departmental enquiry ordered on 15.5.1990 which was held in abeyance as per directions of the Tribunal has been reopened from the same stage after his acquittal in the criminal case in FIR No.81/1990.
2. It is stated by the applicant that he is not disputing the right of the respondents to hold the departmental enquiry even if a person is acquitted in the criminal case. His only contention is that before passing such an order, respondents ought to have applied their mind to Rule 12 of Delhi Police (Punishment & Appeal) Rules, 1980 to find out whether his case falls out in any of the exceptions laid therein. In the instant case, since respondents have not even bothered to apply their mind to Rule 12, therefore, this order is liable to be quashed and set aside.
3. Respondents on the other hand have submitted that departmental enquiry was initiated against the applicant vide order 15.5.1990 on the allegation that while posted at PS Lajpat Nagar, he was on duty on the night between 4/5.3.1990. He stopped his scooter in front of a car No.DBA-4847 of one Shri Harish Kumar R/o A-241, Defence Colony, New Delhi, while he was going to Amar Colony at about 10.30 p.m. along with his brother Satish Kumar and friend Jawahar Arora and pulled out Shri Harish Kumar without asking anything and started beating him. The applicant also opened the door of the car and took out a packet containing Rs.70,000/- out of the said car and kept the same in his jacket in the presence of Shri Jawahar Lal Arora and Shri Satish Kumar who were present there. They requested him to return the money but the applicant refused to return the packet containing money. The currency notes were reported to be of Rs.100/100 each denomination amounting to Rs.70,000/-. A case FIR No.81/90 dated 5.3.1990 under Section 379/323 IPC was registered against the applicant and investigation was transferred to Crime Branch. He was placed under suspension vide DD No.52-B PS Lajpat Nagar dated 5.3.1990, and regularized vide Order No.4852-4912/SD (P-II) dated 27.3.1990. The applicant filed an OA 1412/1990 tilted Shri Raj Singh Vs. C.P. Delhi & Others in the Honble Tribunal against the departmental enquiry order and summary of allegations initiated by the department. The Honble CAT vide judgment order 18.1.1991 in OA No. 1412/1990 titled Shri Raj Pal Singh Vs C.P. Delhi and Others has held that we are of the view that the disciplinary proceedings initiated against the applicant in pursuance of order dated 15.5.1990 should be stayed till the disposal of the criminal case.
4. The applicant was found guilty under Section 379/323 IPC by the Metropolitan Magistrate vide its judgment dated 12.9.2005 by holding that he gave beatings to the complainant Harish and his brother and also committed theft of a cash amounting to Rs.70,000/- from inside the car. However, the matter was carried in appeal, whereupon the Additional Sessions Judge-01, SE/New Delhi, gave its judgment on 19.9.2009 holding therein as follows:-
It is clear that there are material contradictions and the testimony of PW-1, PW-2 and other prosecution witnesses when considered in totality do not bring home case of prosecution against the present appellant, rather shadow of doubt is being raised. Benefit of doubt is given to the appellant. The impugned judgment dated 12.9.2005 qua FIR No.81/1990 PS Lajpat Nagar and order on sentence dated 12.9.2005 are set aside. Appellant is acquitted in case FIR No.81/1990 PS Lajpat Nagar. Appeals stands allowed.
5. It is further submitted by the respondents that on receiving the judgment dated 19.9.2009, case of the applicant was considered under Rule 12 of Delhi Police (Punishment & Appeal) Rules, 1980 and the departmental enquiry was reopened from the stage it was kept in abeyance.
6. We have heard both the counsel and perused the pleadings as well.
7. Though in the counter affidavit respondents have stated that the case of the applicant was considered under Rule 12 of Delhi Police (Punishment & Appeal) Rules, 1980 but in the impugned order it is not mentioned under which clause of Rule 12 the case of the applicant would fall. Rule 12 for ready reference 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.
8. Counsel for the applicant had not disputed that respondents have a right to reopen the case even after the person is acquitted in a criminal case. However, his contention is they have to apply their mind to Rule 12 before passing any such order because Rule 12 specifically deals with what action is required to be taken, following judicial acquittal.
9. At this juncture it would be pertinent to refer to the Full Bench judgment of the Central Administrative Tribunal in the case of Sukhdev Singh and Another Vs. Government of NCT of Delhi and Others decided on 18.2.2011 (OA No. 2816/2008) wherein it was held as under:-
We hold that there is no bar, express or 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.
10. Of course, that was a case where the criminal case was yet to be decided but the fact remains that this Tribunal has held that the judicial verdict would have precedence over departmental proceeding and departmental enquiry can be started after acquittal only if it falls within the 5 exceptions mentioned under Rule 12. In view of above it would be advisable that respondents apply their mind to the judgment to see whether departmental enquiry can be re-opened in the given circumstances against the applicant or not. This would help them in reducing the unnecessary litigation and time of the department at initial stage itself because ultimately if they come to the conclusion that the departmental enquiry could not have been held as it does not fall in any of the 5 exceptions of Rule 12 of Delhi Police (Punishment & Appeal) Rules, 1980 they need not reopen the enquiry in a mechanical manner.
11. In the instant case the respondents have not stated under which clause applicants case would be covered, therefore, order dated 28.4.2010 is quashed and set aside. The matter is remitted back to the authorities to apply their mind to Rule 12 of Delhi Police (Punishment & Appeal) Rules, 1980 with reference to the judgment given by the Additional District and Sessions Judge, Delhi and decide under which clause of Rule 12 the enquiry is being reopened. This shall be done within a period of 2 months from the date of receipt of a copy of this order. No costs.
(DR. A.K. MISHRA) (MRS. MEERA CHHIBBER)
Member (A) Member (J)
Rakesh