Central Administrative Tribunal - Delhi
Shaji E J vs Comm. Of Police on 15 October, 2015
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CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI
OA NO.2553/2015
RESERVED ON 05.10.2015
PRONOUNCED ON 15.10.2015
HON'BLE MR. JUSTICE B.P. KATAKEY, MEMBER (J)
HON'BLE MR. V.N. GAUR, MEMBER (A)
Constable Shaji E.J., Age-44 years,
PIS No.28891026,
S/o Sh. P.M. Ismail,
R/o Qtr. No.4, Type-II,
Police Station Uttam Nagar,
New Delhi. ...Applicant
(By Advocate: Mr. Sachin Chauhan)
VERSUS
1. Govt. of NCTD through
The Commissioner of Police
Police Headquarters, MSO Building,
I.P. Estate, New Delhi.
2. The Dy. Commissioner of Police,
1st BN. DAP,
Kingsway Camp,
New Delhi -110 009.
3. Sh. Harish Chandra Yati
Inspector/Enquiry Officer,
CC 'F' COY/1st BN DAP,
PS Kalkaji, New Delhi. ...Respondents
(By Advocate: Mrs. P.K. Gupta)
:ORDER:
HON'BLE MR. JUSITCE B.P. KATAKEY, MEMBER (J):
The applicant, who is a Constable in Delhi Police, has filed this OA challenging the order dated 06.01.2015 passed by the 2 Deputy Commissioner of Police, 1st Bn. DAP, Delhi, directing conduct of a departmental enquiry against him and appointing an Inquiry Officer to conduct the same, on the basis of the allegation that the applicant used to follow the complainant, a lady, who was working in a Nursing Home, in her way and he abused and compelled to make illicit relation with him and also threatened with dire consequences, in case she did not fulfill his requirements/wishes. On the basis such allegations FIR No.348 dated 25.03.2014 under Section 354/509/506/341 IPC was registered in Rajouri Garden Police Station, where he was arrested and subsequently granted bail. The applicant has also challenged the order dated 15.06.2015 passed by the Disciplinary Authority refusing to accept his representation for keeping the departmental enquiry in abeyance till conclusion of the criminal case.
2. We have heard learned counsel, Mr. Sachin Chauhan appearing for applicant and learned counsel Mrs. P.K. Gupta appearing for respondents.
3. Referring to the summary of allegations leveled against the applicant in the departmental enquiry as well as the contents of the complaint, based on which FIR No.348 dated 25.03.2014 under Section 354/509/506/341 IPC was registered in Rajouri Garden Police Station, it has been submitted by the learned counsel for the applicant that since the allegation in the FIR as 3 well as the summary of allegations in the departmental enquiry are identical and based on the same set of witnesses, the departmental enquiry initiated by the aforesaid order passed by the Disciplinary Authority needs to be stayed till disposal of the criminal case registered on the basis of the aforesaid FIR, otherwise the applicant would be compelled to disclose his defence during the departmental enquiry initiated against him. It has also been submitted that in the departmental enquiry the complainant is still to be examined, whose statement under Section 164 Cr.P.C. has also been recorded in connection with the criminal case registered against the applicant and hence till at least the examination of the prosecution witnesses in the criminal case is complete, the departmental enquiry against the applicant is required to be stayed, more so, when the criminal case is fixed on 15.10.2015 for framing the charge. The learned counsel has also submitted that as the allegations in the criminal case against the applicant is grave in nature and there would not be any undue delay in disposal of the criminal case, the departmental enquiry, initiated against the applicant, may be stayed till disposal of the said criminal case or at least for a period of one year. The learned counsel, in support of his contention, has placed reliance on an order passed by this Tribunal on 27.05.2015 in OA No.1978/2015 (Ram Kishan Sharma). The learned counsel, in support of his contention, has also placed 4 reliance on the judgment passed by the Hon'ble Supreme Court in Capt. M. Paul Anthony Versus Bharat Gold Mines Ltd. & Anr. reported in (1999) 3 SCC 679.
4. The learned counsel appearing for the respondents, on the other hand, referring to the allegations leveled against the applicant in the departmental enquiry as well as the contents of the FIR lodged against the applicant, has submitted that since the allegation in the criminal case against the applicant does not involve complicated questions of law and fact, the departmental enquiry may not be stayed, even if both the proceedings are based on similar set of facts. The learned counsel further submitted that though the FIR was registered against the applicant on 25.03.2014, the charges are yet to be framed, despite expiry of more than one and half years and hence there is no possibility of the criminal proceeding being over early. It has also been submitted that the standard of proof in the departmental enquiry and the criminal proceeding being different, the departmental proceedings can continue during the pendency of criminal case, there being no bar in that regard. The learned counsel, in support of her contention, has also placed reliance on the judgment passed by the Hon'ble Supreme Court in Capt. M. Paul Anthony (supra). The learned counsel further submitted that the order passed by a Co-ordinate Bench of this Tribunal on 27.05.2015 in OA No.1978/2015 (Ram Kishan Sharma) is not 5 applicable in the facts and circumstances of the instant case, as the order in the said case was passed based on the facts and circumstances involved in that case. The learned counsel, therefore, submitted that the application filed by the applicant deserves to be dismissed.
5. We have considered the submissions advanced by the learned counsel for the parties and also perused the pleadings.
6. Admittedly, the FIR was lodged by the complainant, whose name has not been mentioned in this order, against the applicant, based on which FIR No.348, dated 25.03.2014 under Section 354/509/506/341 IPC was registered in Rajouri Garden Police Station. A challan was filed in the Trial Court on 14.12.2014. The charges, however, are yet to be framed. On the same set of facts, the Disciplinary Authority has also directed to conduct the disciplinary enquiry against the applicant by issuing the order dated 06.01.2015 and appointing an Inquiry Officer to conduct the enquiry. The standard of proof in the criminal case and the departmental enquiry is different. While in the former it is beyond all reasonable doubts, in the latter it is preponderance of probabilities. Acquittal in a criminal case, for failure on the part of the prosecution to prove the charge beyond all reasonable doubts, would not be a bar to proceed against the person by initiating a departmental enquiry.
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7. The Apex Court in Capt. M. Paul Anthony, referring to its earlier pronouncements has concluded, as under:-
"(i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately.
(ii) If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case.
(iii) Whether the nature of a charge in a criminal case is grave and whether complicated questions of fact and law are involved in that case, will depend upon the nature of offence, the nature of the case launched against the employee on the basis of evidence and material collected against him during investigation or as reflected in the charge sheet.
(iv) The factors mentioned at (ii) and (iii) above cannot be considered in isolation to stay the Departmental proceedings but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed.
(v) If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date, so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty, administration may get rid of him at the earliest."
8. The proceeding in the departmental enquiry, which is based on identical and similar set of facts as in the criminal case against the delinquent employee can be stayed provided that the charge in the criminal case against the delinquent employee is of a grave 7 nature which involves complicated questions of law and fact. Whether a criminal case is grave in nature and involved complicated questions of fact and law will depend upon the nature of offence and material collected against him during investigation or as reflected in the charge sheet. While considering as to whether the departmental enquiry is to be stayed, due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed. If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date, so that if the employee is found not guilty, his honour may be vindicated and in case he is found guilty, administration may get rid of him at the earliest.
9. As noticed above, though the FIR was lodged on 25.03.2014, the charge is yet to be framed in the criminal case, despite filing of challan on 14.12.2014. Therefore, possibility of early disposal of the criminal case is remote. The Tribunal can also take judicial notice of the fact that there is hardly any criminal case, which gets disposed of without any undue delay. That apart, though the departmental enquiry and proceeding in the criminal case involve charge which is grave in nature, it does not involve complicated questions of law of fact requiring stay of 8 the further proceeding in the departmental enquiry initiated against the applicant. No prejudice shall also be caused to the applicant if the departmental enquiry is allowed to be continued as he has a right to keep mum in the criminal proceeding. Moreover, there is no bar to proceed with the departmental enquiry as well as criminal case simultaneously. If the further proceeding of the departmental enquiry is stayed till disposal of the criminal case, which is not likely to be completed within a reasonable period of time, it would amount to causing undue delay in disposal of the departmental enquiry initiated against the applicant. The departmental enquiry, in the interest of the applicant, needs to be decided, as expeditiously as possible so that if he is found not guilty, his honour may be vindicated and if he is found guilty, he is punished.
10. The decision rendered by this Tribunal in Ram Kishan Sharma (supra) based on the facts and circumstances involved in the said case, cannot be applied in the facts and circumstances involved in this case, which has been narrated above. As held by the Apex Court in Capt. M. Paul Anthony (supra) the issue of complicated questions of fact and law involved in the criminal case has to be decided on the basis of the facts involved in each case.
11. In view of the aforesaid discussion, we do not find any merit in the present OA and hence the same is dismissed. The 9 respondent-authority is directed to complete departmental enquiry initiated against the applicant as expeditiously as possible, in any case within a period of 4 (four) months from today. Needless to say that if the said proceeding is delayed at the instance of the applicant, such period of delay would be added to the aforesaid period of 4 (four) months. No costs.
(V.N. Gaur) (B.P. Katakey) Member (A) Member (J) /jk/