Central Administrative Tribunal - Delhi
Sub Inspector Jagdish Prasad vs Govt. Of Nct Of Delhi on 9 September, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA No. 2873/2010
New Delhi this the 9th day of September, 2010
Honble Mr. L.K.Joshi, Vice Chairman (A)
Honble Dr. Dharam Paul Sharma, Member (J)
Sub Inspector Jagdish Prasad
No. D/2094 (PIS No. 16850025)
S/o Shri Nathu Lal Meena,
R/o H.No. 33, Type III, Police Colony,
Shalimar Bagh, New Delhi. Applicant
(By Advocate Ms. Jasvinder Kaur )
VERSUS
1. Govt. of NCT of Delhi
Through Commissioner of Police,
PHQ, I.P. Estate, New Delhi.
2. Deputy Commissioner of Police,
West District, New Delhi.
3. Mr. Raj Singh,
ACP/Mact Cell, West District, Delhi
Inquiry Officer. Respondents
O R D E R
Mr. L.K. Joshi, Vice Chairman (A):
Sub Inspector Jagdish Prasad Meena of Delhi Police, the Applicant herein, is aggrieved by order dated 3.05.2010 directing that the Applicant be dealt with departmentally and order dated 17.08. 2010 by which the request of the Applicant for engaging a legal practitioner to defend him in the departmental enquiry has been rejected and he has been directed to engage any other government servant as defence assistant. These orders have been placed at Annex A-1 and Annex A-2 respectively. The following reliefs have been asked for:
(i) Direct the Respondents to quash and set aside impugned orders at Annexure A-1 and A-2.
(ii) And, may pass such other further orders/directions deem fit and proper in facts and circumstances of the case in favour of the Applicant;
(iii) Allow the present application with costs.
2. The brief facts of the case giving rise to this OA would show that the Applicant was working as Sub Inspector in the Delhi Police during the relevant time. While the Applicant was posted as Additional SHO of Police station Paschim Vihar, a case FIR number 294/2003 under Section 302 of IPC was entrusted to him. Allegedly on a complaint from one Navrang Pal, made to the CBI, alleging that the Applicant was demanding a bribe of Rs. Two lakh from the complainant for not implicating him in the criminal case, a trap was laid by the CBI, in which the Applicant was alleged to have been caught red-handed. On the basis of the complaint a case number RC-DAI-2003-A-0046 under Section 7 of the Prevention of Corruption Act, 1988 was registered against the Applicant by the CBI on 13.08.2003. The evidence has been recorded in the case before the trial court and it is now posted for final arguments, as informed by the learned counsel for the Applicant. As mentioned above, departmental proceedings were initiated against the Applicant by order dated 3.05.2010 on the same facts and grounds on which the criminal case is pending trial against the Applicant. A Summary of Allegations along with the list of witnesses and documents relied upon by the prosecution in the departmental proceedings was served upon the Applicant on 13.07.2010. On 21.07.2010 the Applicant made a representation to the enquiry officer seeking permission to engage a legal practitioner as his defence assistant in the departmental proceedings. The request of the Applicant, as mentioned above, was rejected by the impugned order dated 17.08.2010.
3. The learned counsel for the Applicant would, at the outset, contend that the Respondents should not continue with the departmental proceedings against the Applicant on the grounds that (i) the criminal case and the departmental proceedings are based on identical facts and rely on the same documents and witnesses and (ii) there has been considerable delay in initiating the departmental proceedings as the alleged incident took place in 2003 and the Summary of Allegations had been served on the Applicant in 2010, i.e., after seven years. It was further contended that the departmental proceedings should at least be kept in abeyance till the conclusion of the criminal trial, as it would be in the interest of justice and fair play. Reliance has been placed on State of Rajasthan Vs. B K Meena and Ors., 1996 (6) SCC 417 from which the following observation of the Honourable Supreme Court has been quoted in paragraph 5D, which reads thus:
The staying of disciplinary proceedings, it is emphasized, is a matter to be determined having regard to the facts and circumstances of a given case and that no hard and fast rules can be enunciated in that behalf. The only ground suggested in the above decisions as constituting a valid ground for staying the disciplinary proceedings is that the defence of the employee in the criminal case may not be prejudiced. This ground has, however, been hedged in by providing further that this may be done in cases of grave nature involving questions of fact and law. In our respectful opinion, it means that only the charges must be grave but that the case must involve complicated questions of law and fact. Moreover, advisability, desirability or propriety, as the case may be has to be determined in each case taking into consideration all the facts and circumstances of the case. Reliance has also been placed on Capt. M. Paul Anthony Vs. Bharat Gold Mines Limited, JT 1999 (2) SC 456 to argue that the departmental proceedings should not go on parellelly with the criminal trial as complicated facts and questions of law are involved.
4. It was argued vehemently by the learned counsel for the Applicant that by not giving the Applicant the right to appoint a legal practitioner for his defence in the departmental proceedings, the fundamental right of the Applicant to defend himself adequately has been denied. She argued that in the instant case the Respondents are bent upon conducting the departmental proceedings in violation of the principles of natural justice, thereby vitiating the whole process that was designed to ensure fair play. Relying on the judgement of the Honourable Supreme Court in C L Subramaniam Vs. Collector of Customs, Cochin, (1972) 3 SCC 542 she would contend that in the departmental proceedings the Respondents were bound to accept the Applicants request for giving him permission for engaging a legal practitioner to defend him as the witnesses were trained technical persons and also belong to Forensic Science Laboratory. Not being a trained legal practitioner, it was argued, it would not be possible for the Applicant to cross-examine the technical witnesses.
5. We have given our utmost consideration to the arguments of the learned counsel for the Applicant and have gone through the pleadings minutely.
6. In our considered opinion the facts and circumstances and the charges against the Applicant are not such as to hold that the criminal trial and departmental proceedings should not proceed parallely. The evidence in the criminal case has now been concluded. There is now no apprehension that the defence of the Applicant would be prejudiced, which could have been plausibly argued if the evidence in the departmental proceedings were to be recorded before the evidence in the criminal trial. It has also not been shown convincingly that complicated questions of facts and law are involved in the case before the trial court in criminal case. The Honourable Supreme Court has held in Capt. M. Paul Anthony (supra) that proceedings in a criminal case and departmental enquiry can go on simultaneously, though separately unless complicated questions of facts and law are involved. That not being so in the case against the Applicant, in our view both the criminal trial as well as the departmental enquiry can proceed simultaneously. Although the departmental enquiry against the Applicant has been initiated belatedly after a gap of seven years, yet it has not been shown how prejudice has been caused to the Applicant by this delay. No grounds have been adduced for showing that the Applicant has been adversely affected by the delay. It would not be the case of the Applicant that his memory or the memory of the witnesses would have faded with the passage of time because of which it would not be possible for him to defend himself properly. Since the criminal trial has been going on and the evidence has been recorded, it is unlikely that either the Applicant or the witnesses would not have the recollection of events. It is also not the case of the Applicant that his promotion would be adversely affected by holding the departmental enquiry belatedly. The Applicant would in any case not be promoted because of the pendency of the criminal trial. Moreover, the charge against the Applicant is very serious charge of corruption. We have to strike a balance between the Respondents and the case of the Applicant. In our considered opinion in the facts and circumstances of the instant case there are no grounds for setting aside the Summary of Allegations on the ground of delay in issuing the same.
7. There is also no force in the argument that there has been any illegality in not giving permission to the Applicant to engage a legal practitioner as his defence assistant. In the case of C L Subramaniam (supra) the facts were that the appellant before the Honourable Supreme Court was proceeded against departmentally for canvassing business for the taxi service being run by his wife. During the course of enquiry an additional ground was served on the appellant that he himself was running the taxi service. The departmental enquiry culminated in the order of removal of the appellant from service. The writ petition of the appellant before the Honourable High Court of Kerala was rejected. That was how the appellant was before the Honourable Supreme Court. One of the grounds of challenge was that the appellant had not been afforded a reasonable opportunity to present his case in the departmental enquiry. In this context the Honourable Supreme Court examined the Rule 15 (5) of the CCS (CCA) Rules, 1965, as it existed then. The Rule reads thus:
The Disciplinary Authority may nominate any person to present the case in support of the charges before the authority inquiring into the charges (hereinafter referred to as the Inquiring Authority). The Government servant may present his case with the assistance of any Government servant approved by the Disciplinary Authority, but may not engage a legal practitioner for the purpose unless the person nominated by the Disciplinary Authority as aforesaid is a legal practitioner or unless the Disciplinary Authority, having regard to the circumstances of the case, so permits. In the departmental enquiry, one Sivaraman had been appointed as the presenting officer by the disciplinary authority. The said Sivaraman was a trained police prosecutor. The appellant wrote to the disciplinary authority that in view of the fact that the presenting officer was legally trained to conduct such prosecutions, the appellant would be prejudiced in his defence unless he was permitted to engage counsel to appear and defend him during the enquiry. The request was rejected on the ground that though the presenting officer was legally trained but he was not a legal practitioner and hence there was no need to allow the appellant to engage a legal practitioner to defend him in the enquiry. The grievance of the appellant was that he was pitted against a trained prosecutor and not that the presenting officer was a legal practitioner. The Supreme Court noted that the disciplinary authority did not consider that grievance. It was observed thus:
The fact that the case against the appellant was being handled by a trained prosecutor was a good ground for allowing the appellant to engage a legal practitioner to defend him lest the scales should be weighed against him. The Disciplinary Authority completely ignored that circumstance. Therefore, that authority clearly failed to exercise the power conferred on it under the rule. It is not unlikely that the Disciplinary Authoritys refusal to permit the appellant to engage a legal practitioner in the circumstances mentioned earlier had caused serious prejudice to the appellant and had amounted to a denial of reasonable opportunity to defend himself. It is further to be noted that once the request of the appellant for engaging a legal practitioner was rejected, he made a request to appoint one Abraham Kurian, an employee of the Government. The appellant requested that the disciplinary authority should write to the controlling authority of the said Abraham Kurian to allow him to assist the appellant as his defence assistant. While the enquiry went on, the disciplinary authority did not write the letter in time and as a result, it has been noted in the judgement, the proposed defence assistant did not get the permission in time and he was not able to defend the appellant in the enquiry. It is in these circumstances that the Honourable Supreme Court held thus:
23. It is needless to say that Rule 15 is a mandatory rule. That rule regulates the guarantee given to Government servants under Article 311. Government servants by and large have no legal training. At any rate, it is nobodys case that the appellant had legal training. Moreover, when a man is charged with the breach of a rule entailing serious consequences, he is not likely to be in a position to present has case as best as it should be. The accusation against the appellant threatened his very livelihood. Any adverse verdict against him was bound to be disastrous to him, as it has proved to be. In such a situation he cannot be expected to act calmly and with deliberation. That is why Rule 15 (5) has provided for representation of a Government servant charged with dereliction of duty or with contravention of the rule by another Government servant or in appropriate cases by a legal practitioner. The facts in the instant case are distinguishable from the facts of the judgement cited above. There is no legal practitioner or trained prosecutor pitted against the Applicant. The enquiry officer is an Assistant Commissioner of Police, an officer of the Department like the Applicant himself. From the narration of facts it is clear that no complicated technical issues are involved in the case and the witnesses are also not going to depose about complex matters. The list of witnesses and what each one of them is going to prove is given in tabular form in the document appended to the Summary of Allegations. It is reproduced in full below:
List of Witnesses S.No. Name and address of witnesses Gist
1. Sh.Navrang Pal, S/0 Sh.Munshi Ram R/0 BE-3, Ram Pura Colony, Hari Nagar, New Delhi. He will prove the complaint: pre and post trap proceedings and motive of taking bribe by the accused and will identify voice of accused in the audio cassettes in which the conversation between him and accused was recorded during pre and post trap proceedings.
2. Sh. Ramphal S/o Sh. Niki Ram, Assistant, Indian Metrological Department, Mausam Bhawan, Lodhi Road, New Delhi. He will prove the pre and post trap proceedings, demand and acceptance of bribe by accused. He will also identify the voices of complainant, witness Sh.Zile Singh and Sh. J.P.Meena accused in the conversation was recorded during pre and post trap proceedings.
3. Sh. Sri Niwas S/o Late Sh. Tika Ram R/0 A-45A, Hastal Vihar, Uttam Nagar,New Delhi. He will prove the pre and post trap proceedings. He will also prove the demand of bribe by accused J.P.Meena and he will also identify the voice of the complainant.
4. Sh. Zile Singh S/o Sh. Pratap Singh R/o H.No.1,Central Karagar Complex, Tihar Jail, New Delhi. He will prove the post trap proceedings and identify the voices of himself complainant and accused in the audio cassettes.
5. Sh. Deepak Gupta S/0 Sh.S.K.Gupta R/0 248, Delhi Gate, New Delhi. He will prove that the phone No. 9811567688 in the name of Sh. Jagdish Prasad Meena. He will also prove the incoming and outgoing calls in their mobile as the day of trap.
6. Sh. R.K. Singh S/0 Sh. Shiv Sharan Singh R/0 B-373, Street No. 8 Jaitpur Extension, Part-II, New Delhi. He will prove that the phone No. 9810053459 was in the name of Sh. Navrang Pal, he will also porove the incoming and outgoing calls in this mobile as the day of trap to link the conversation that had taken place on the day of trap between accused and Sh. Navrang Pal.
7. Sh. Ombir Singh Rathi, LDC, GPF Section, Block-C, Room No. 14, Vikas Sadan, DDA, New Delhi. He will prove that accused Jagdish Prasad Meena denied to give specimen voice.
8.
Sh.C.S. Rawat, LDC/Audit Cell, DDA Office, Vikas Sadan, New Delhi.
He will prove that on 18-08-2003 accused Jagdish Prasad Meena denied to give specimen voice.
9. Sh.R.S.Bedi, Inspr. CBI/ACB/New Delhi.
He will prove the pre and post trap proceedings. He will also prove the motive, demand, acceptance and recovery of bribe money. He will also prove the recording of conversation between accused and complainant during pre and post trap proceedings.
10. Sh. Surender Mallik, Inspr. ACB/CBI, New Delhi He will prove the pre and post trap proceedings.
11. Sh. R.C.Garwan, Inspr, ACB/CBI, New Delhi. He will prove the pre and post trap proceedings.
12. Sh.Prem Nath, Sub Inspr. ACB/CBI, New Delhi He will prove the pre and post trap proceedings.
13. Sh.Yoginder Prasad, Constable ACB/CBI, New Delhi.
He will prove that he collected the opinion and exhibits from CFSL, New Delhi.
14. Sh.C.L.Bansal, SSO-II (Chemistry) CFSL, New Delhi.
He will prove the opinion as the left and right hand washes of the accused.
15. Sh.Anil Kumar Singh, Inspr. ACB/CBI,New Delhi. He will prove the entire investigation of the case.
16. HAE/West Distt. He will prove the posting of Sh.Jagdish Prasad Meena as Addl. SHO/Paschim Vihar on 13-8-2003
17. MHCR/Paschim Vihar He will depose that Case FIR No. 294/03 U/S 302 IPC was being investigated by Inspr. Jagdish Prasad Meena vide DD No. 2-A dated 25-06-2003 and he left the police station on leave vide DD No. 22-B dated 13-8-2003.
We are not convinced that the evidence of these witnesses is so complicated and complex that a legal practitioner would be required to cross examine him. There is no force in this argument.
8. On the above consideration we do not find any merit in the OA, which is accordingly dismissed in limine.
( Dr. Dharam Paul Sharma ) ( L.K. Joshi ) Member (J) Vice Chairman (A) `sk