Central Administrative Tribunal - Delhi
Sh. Satish Chander vs Govt. Of Nct Of Delhi Through on 14 December, 2011
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-2276/2011
New Delhi this the 14th day of December, 2011.
Honble Mrs. Meera Chhibber, Member (J)
Honble Dr. A.K. Mishra, Member (A)
Sh. Satish Chander,
S/o Sh. Bhobal Ram,
R/o B-65, Budh Vihar Colony,
Tajpur Pahari, Badarpur,
New Delhi. . Applicant
(through Sh.S.K. Gupta, Advocate)
Versus
Govt. of NCT of Delhi through
1. The Chief Secretary,
Delhi Secretariat,
I.P. Estate, New Delhi.
2. The Commissioner of Police,
Police Headquarter,
MSO Building,
I.P. Estate, New Delhi.
3. The Jt. Commissioner of Police,
Southern Range, Police Headquarter,
MSO Building, I.P. Estate,
New Delhi.
4. The Addl. Commissioner of Police,
South East District,
New Delhi. . Respondents
(through Sh. N.K. Singh for Mrs. Avnish Ahlawat, Advocate)
O R D E R
Dr. A.K. Mishra, Member (A) The applicant has challenged the order dated 11.04.2011 of the Disciplinary Authority (DA) by which a disciplinary proceeding has been initiated under Delhi Police (Punishment & Appeal) Rules, 1980 giving a direction that a departmental inquiry should be conducted by the inquiry officer (IO) to be nominated by the Dy. Commissioner of Police, DE Cell, Delhi.
2. The applicant is a Sub-Inspector under Delhi Police and a criminal case No. 11/2002 was started against him under Prevention of Corruption Act pursuant to the FIR/RC No.11(A)/2000. After trial, the Special Judge, PC Act, CBI, Delhi acquitted him on 27.08.2010 from the criminal charge made in the aforesaid case. But on the same very allegations that he demanded and accepted bribe money of Rs.10,000/- for not opposing the bail petition of one Rajiv Chopra S/o Sh. Jagannath Chopra, the impugned disciplinary proceedings were initiated against him.
2.1 The order dated 11.04.2011 of the DA states that one Sh. Jagannath Chopra made a written complaint to the CBI Office alleging that his son Rajiv Chopra had purchased Shop No.1,2 &3 at Saurabh Vihar, Hari Nagar Extention, Jaitpur, Delhi from one Sh. Kesar Singh and his wife. There was some dispute regarding monetary transactions between Sh. Kesar Singh and one Smt. Tara Devi who,with the collusion of the officials of Badarpur Police Station, locked out the shops and handed over the keys to the applicant who was the Sub-Inspector of the Police Station. When Sh. Rajiv Chopra went to Police Station with his friend Sh. Jai Bhagwan on 31.03.2000,SI Satish Chander (applicant) allegedly detained him and demanded the bribe of Rs.50,000/-; when this demand was not satisfied Sh. Rajiv Chopra was arrested and a case was registered against him. The Bail Petition filed on 02.04.2000 in the Court in this connection was rejected the next day. Allegedly the applicant mentioned to the complainant that until his demand for bribe was satisfied his son would not be bailed out. Case No. RC-DAI-2000-A-0011 dated 05.04.2000 u/s 7, 13(2) r/w 13(1)(d) of P.C. Act, 1988 was registered against the applicant on this complaint and on 06.04.2000, the applicant was apprehended by the officials of CBI while demanding and accepting a sum of Rs. 10,000/- as illegal gratification from Sh. Jagannath Chopra (complainant) for not opposing the bail application of his son Sh. Rajiv Chopra. The applicant was caught red handed and the tainted currency notes (20 in number) of Rs.500/- denomination were recovered from his trouser pocket. Besides, his fingers which were dipped into the sodium carbonate solution turned pink. The trouser of the applicant also turned pink when put in the solution. According to the DA, two witnesses PW-III and PW-V turned hostile and another PW Jai Bhagwan who, although was not hostile to the prosecution, yet did not mention the fact about the demand and acceptance of the bribe. The trial Court, while acquitting the applicant made these observations about PW-III, PW-V and PW Jai Bhagwan.
3. The DA came to the conclusion that although the applicant was acquitted by the Trial Court because of the aforesaid deficiencies in prosecution case yet, the facts about demand and acceptance of bribe money and seizure of the tainted notes as well as the chemical reaction on the fingers of the applicant and his trouser pocket establish the allegation of his having received the bribe money. Therefore, it was a fit case to start a disciplinary proceeding against him under Rule-12 of the aforesaid Rules, 1980.
4. Although the applicant has made a prayer to quash the provisions of Rule-12(1)(b) of the Delhi Police (Punishment & Appeal) Rules, 1980 on the ground that it gives arbitrary, excessive and unbridled power to the officials of Delhi Police to start disciplinary proceeding in cases ending in acquittal in a criminal trial, the learned counsel for the applicant confined his arguments, at the time of hearing, only in respect of the prayer for setting aside the impugned order dated 15.05.2011. His arguments, stated briefly, are as follows:-
(i) The DA has invoked the provisions of Rule-12(i) & (ii) of the aforesaid Rules while passing the impugned order. Rule-12 states that 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) criminal charge has failed on technical grounds, or (b) in the opinion of the Court or of the Dy. Commissioner of Police, the prosecution witnesses have been won over.
(ii) Learned counsel submits that though Rule-12(i) which should be read as Rule-12(a) has been cited by the DA, the present case is not one where the criminal charge failed on technical grounds. He refers to the observation of Honble High Court of Delhi in the case of Commr. of Police, Delhi Vs. H. C. Laxmi Chand (WP(C) No. 22584/2005) decided on 09.09.2011 as to what technical ground means. The observations read as follows:-
34..Citing some of the instances of technical acquittal it was held that it would be acquittal on technical grounds, if an unauthorized person files a complaint or the petition fails before a court or it fails on technical aspect e.g. there is no proper sanction, or the report has not been lodged by the competent authority, or there is such other procedural flaw which may prompt the criminal Court to put an end to the prosecution case. Then in such circumstances acquittal will be a technical acquittal. However, in such cases of technical acquittal the prosecution may still be in a position to come back to the court after rectifying the technical flaw. But if the acquittal is after appreciation of evidence adduced against the accused, the prosecution or State cannot go back and initiate another criminal case against the accused or bring more evidence on the same charges..
(iii). Since the criminal case relating to the applicant ended in acquittal after discussion of the evidence presented by the prosecution, it could not be a case of acquittal on technical ground. He developed this argument further to contend that if one clause under which the order of the respondent authority has been passed fails, then the entire order should be treated as vitiated and unsustainable. To support this contention he refers to the judgment of the Honble Supreme Court Pratap Singh Vs. The State of Punjab, 1963-(SC2)-GJX-0201-SC where the rulings from British Courts have been cited to support the principle that if in such a situation the dominant purpose is unlawful then the act itself is unlawful and it is not cured by saying that they had another purpose which was lawful.
5. We may deal with this contention at the beginning before we proceed on to substantive issues raised by learned counsel for the applicant. The ruling relied on says that if a dominant purpose becomes unlawful then the act cannot be cured by taking help of another purpose. In the present case, although the DA has made a mention of both the clauses a & b of Rule-12 in the preliminary recital, yet a careful reading of the order would establish that the dominant issue before the DA was that crucial prosecution witnesses had been won over in the criminal trial against the applicant. His statement is as follows:-
.It is emerged that the charge of demand and acceptance of the tainted money during raid was established, while the depositions of PWs during trial could not support the prosecution in toto except Panch Witness, an independent/material witness of the case. It is considered opinion that the crucial prosecution witnesses have won over by the delinquent and his acquittal attracts the provisions of Rule 12(i) and (ii) of Delhi Police (Punishment & Appeal) Rules, 1980. Therefore, it cannot be accepted that the dominant issue before the DA was acquittal of the criminal case on technical grounds; rather it was on the ground that the crucial prosecution witnesses did not support the prosecution case as they were won over. Therefore, we take it that the impugned order was passed primarily under Rule-12(b) of the aforesaid Rules, although a mention has also been made about Rule-12(i).
5.1 The second ground advanced by the learned counsel for the applicant is that it is not a case where all the prosecution witnesses had been gained over. As per the observations of the Trial Court, only PW-3 and PW-5 had turned hostile. In the absence of all the witness not having turned hostile, there is no legal ground to initiate proceeding under Rule-12(b) ibid. In this connection, he placed reliance on the order of Honble High Court of Delhi in the case of Govt. of NCT of Delhi and Others Vs. Satya Dev Singh (WP(C) No.4431/2005 to WP(C) 4433/2005) decided on 21.04.2005.
5.2 In the case cited, there was only one witness PW-2 who was declared hostile, but on cross examination he supported the case of the prosecution. It is in this context that the Honble High Court came to the finding that the witness was not won over and concluded that the case was not a fit one for inclusion under the exception Rule-12(b) ibid. Paragraph-4 which contains the concluding observations of the Court is extracted below:-
4.Begum further submitted that PW-2 was won over by the prosecution as he was declared hostile. In order to appreciate her contention we have perused the entire deposition of PW-2 in the criminal court which was placed before us. On going through the same we find that although at one stage in his examination in Chief he was stated that did not know anything in the case yet in the cross examination he supported the prosecution, the same read with other evidence, did not find favor with the learned Session Judge who held that the said evidence is not sufficient to convict the accused and on the basis of thereof acquitted him on benefit of doubt. On going through the submissions made and the fact that witnesses supported the prosecution case at least in the cross examination which evidence was considered opinion, none of the exceptions as provided in Rule 12 of the Rules is attracted in the present case. In any case Clause (b) of Rule 12 which was solely relied upon is not attracted
6. The next argument of the learned counsel is that there must be some material to come to the conclusion that the witnesses had been won over. The mere fact that they turned hostile could not be sufficient to come to such a conclusion. He relied on the observations of the Honble High Court in Laxmi Chands case (supra) to buttress his contention that either there is a finding of the Trial Court or there are some other materials to establish that the witnesses had been won over without which it would not be justifiable to subject a police officer to a disciplinary proceeding on the same very charge from which he was acquitted in the criminal trial.
7. Learned counsel for the respondents submits that the learned Trial Court at paragraph-82 of the order has clearly observed that PW-3 and PW-5 had turned hostile. His observations are as under:-
The two eye witnesses i.e. PW-3 and PW-5 turned hostile and did not support the prosecution story, however even PW-Jai Bhagwan, who did not turn hostile, also did not whisper about the fact that the demand and acceptance of the bribe was confirmed through the eye witnesses at the spot. 7.1 It is submitted that a disciplinary proceeding is different from a criminal trial. The standard of evidence required to bring home the charge is different. Whereas in a disciplinary proceeding it is the principle of preponderance of probability, in a criminal trial the charge has to be established beyond a shadow of doubt. In the present case, the facts mentioned in the order, prima facie, establish a case against the applicant that he was caught red handed with the tainted money by the officers of the CBI on the basis of a credible complaint made by a person whose son was arrested and whose bail petition was rejected because of opposition from the applicant. The complainant was also with the applicant at the time when the CBI officers apprehended the applicant and recovered the amount of Rs.10,000/- received by him from the complainant for not opposing the bail. It is not a case as if there was no prima facie evidence to establish the allegations brought against the applicant in the disciplinary proceeding.
8. We find that the Trial Court itself had made an observation about PW-3 and PW-5 having turned hostile and PW- Jai Bhagwan not clearly having supported the prosecutions case. This finding of the Criminal Court establishes that some crucial witness did not support the prosecution case to the hilt. As has been stated by the DA there is, prima facie, evidence about recovery of the money from the applicant to justify initiation of the disciplinary proceeding where the prosecution will not be required to go through the full rigours of proving a case beyond all doubts as required in a Criminal Trial, but to establish the preponderance of the probability of the charge.
8.1 In these premises, we do not see any infirmity in the initiation of the disciplinary proceedings against the applicant. Needless to say that the applicant will have full opportunity to defend himself in the departmental inquiry. We do not find that any case has been made out for interfering with the process of inquiry. In the result, the O.A. is dismissed. No costs.
(Dr. A.K. Mishra) (Mrs. Meera Chhibber) Member (A) Member (J) /Vinita/