Central Administrative Tribunal - Delhi
Shri Surender Singh vs Commissioner Of Police on 27 February, 2014
Central Administrative Tribunal
Principal Bench
O.A.No.1954/2013
M.A.No.1572/2013
M.A.No.1966/2013
Order Reserved on: 17.09.2013
Order pronounced on 27.02.2014
Honble Shri Sudhir Kumar, Member (A)
Honble Shri A.K. Bhardwaj, Member (J)
1. Shri Surender Singh
S/o Late Sh. Lakhi Ram
R/o A/32 Vijay Nagar Ist Floor
Delhi - 9.
2. Sh. Parveen Kumar
S/o Late Sh. Nefe Singh
R/o H.No.D-15, Hindu College
Delhi - 9. - Applicants
(By Advocate : Shri Ajesh Luthra)
Versus
1. Commissioner of Police
PHQ, MSO Building
IP Estate, New Delhi
2. Deputy Commissioner of Police
Ist Bn. DAP, Kingsway Camp
Delhi.
3. Joint Commissioner of Police
(Armed Police)
PHQ, MSO Building
IP Estate New Delhi. - Respondents
(By Advocate : Ms. Harvinder Oberoi)
O R D E R
Mr. Sudhir Kumar, Member (A):
M.A.No.1572/2013:
MA for joining together, in a single application, is allowed, for the reasons stated therein.
O.A.No.1954/2013:
2. The applicants of this case, are before us aggrieved by the Order dated 19.03.2013, Annexure-I, issued by the Deputy Commissioner of Police (DCP), 1st Battalion, DAP, whereby a departmental inquiry has been ordered to be initiated against them, even though they have been acquitted in the related criminal case, and despite the fact that they had already been exonerated in a departmental inquiry in respect of the same allegations earlier.
3. The applicants are Constables (Executive) in Delhi Police, with Applicant No.1 having been enlisted on 01.04.1986, and Applicant No.2 on 28.07.1988. They have submitted that they had been falsely implicated in a case bearing FIR No.247/2001 under Sections 384/347/420/468/471/120 B IPC of P.S. Adarsh Nagar, Delhi, on allegations of demanding a bribe of Rs.1,00,000 from one Shri Ram Bachan Shukla, after threatening him that he would be implicated in a false case, and harassing him, and had then settled the amount to be Rs.50,000, out of which Rs.30,000 was taken by them immediately, and Rs.20,000 more was to be taken on the same date, i.e., on 03.06.2001.
4. They have submitted that on the same set of facts, and based upon identical and similar allegations, a joint departmental inquiry had been initiated by the respondents against three delinquent Constables, namely Shri Parveen Kumar, Applicant No.2; Shri Surender Singh, Applicant No.1; and one late Shri Karamvir, (@ Shri Karambir Singh), who was also in the Delhi Reserved Police/Delhi Armed Police, but is now no more.
5. They have produced Annexure A/2 to try to prove that it was the same transaction, in respect of which that earlier joint departmental inquiry had been ordered to be initiated against the said three persons, through Order dated 11.04.2011, Annexure A/2 and the departmental inquiry contemplation order had also been issued. As per the required procedure the summary of allegations was then prepared by the Inquiry Officer and served (Pages 21-22 of the paper book of the OA), and the list of witnesses was also served upon them by the Inquiry Officer, through Annexure A/3 (Page 23 of the OA). The list of documents, through which the charges were to be proved was at Annexure A/4 (Page 24 of the OA).
6. During the pendency of the joint departmental inquiry, the third delinquent Shri Karambir expired on 30.07.2011, leaving the two applicants before us, as the only persons remaining to be proceeded ahead in that joint departmental inquiry. A criminal case had also been launched simultaneously against five accused in respect of the same incident, (which got abated in the Criminal trial Court against the said late Karambir Singh through that Courts orders dated 04.04.2012, leaving only four accused persons in that Criminal Case, including the two applicants before us.) The applicants have alleged that all the 8 Prosecution Witnesses of the departmental inquiry were common to the Prosecution Witnesses of that criminal case also.
7. The case of the two applicants now before us is that after holding a full-fledged joint inquiry, the respondents had exonerated the applicants, holding that the charge as not proved, because of which both of them were reinstated in service from suspension, and since, in the meanwhile, all the material witnesses had been examined by the criminal court also, it was directed through Annexure A/5 dated 25.04.2012 that only the orders regarding treatment of the period of their suspension will be issued after the decision of the criminal case.
8. Subsequently, the trial Court of the Learned Metropolitan Magistrate (LMM, in short), MM:NW-05, through the orders dated 02.01.2013 (Annexure A/6), the four surviving accused persons in the criminal case were acquitted, and their bail bonds were cancelled, and sureties were also discharged.
9. The applicants have submitted that though in terms of the earlier order dated 25.04.2012, the respondents had already exonerated the applicants in the departmental inquiry, and only the treatment of suspension period was left to be decided, now since the criminal case has been decided, and the applicants have been acquitted, the entire period of suspension starting from 08.06.2001, and culminating vide then Disciplinary Authoritys order dated 25.04.2012 was required to be decided in their favour. However, the applicants are aggrieved that the respondents have, through the impugned order dated 9.03.2013, Annexure A/1, after examining the judgment passed by the LMM, decided that their case is covered under Rule 12 of the Delhi Police (Punishment & Appeal) Rules, 1980, because the LMM had recorded in his judgment that the witnesses, including the complainant, had been won over, and the prosecutions case has failed on only technical grounds, even though all the material before the LMM had supported the commission of the crime.
10. The applicants have said that this decision of the respondents is highly illegal, arbitrary and unjustified, as the applicants have already been exonerated of the allegations, after conduct of a regular departmental inquiry, and, therefore, Rule 12 of the Delhi Police Rules, ibid, is not applicable, and any action under the said Rule is null and void, besides being abuse and misuse of authority.
11. The applicants have submitted that their representations against such an order, submitted through Annexure A/7 by Applicant No.1 had not been considered, and no decision had been taken. No such representation filed by Applicant No.2 was mentioned or produced along with the OA. It was submitted that it was learnt by them that their Disciplinary Authority had since appointed an Inquiry Officer, in the meanwhile, who would be issuing the Summary of Allegations to the applicants, and that in such circumstances, they were left with no efficacious legal remedy, except to approach this Tribunal.
12. In filing this OA, the applicants have taken the grounds that the impugned action of the respondents is illegal, arbitrary, unjustified, and unfair, as the applicants have already faced a departmental inquiry on the same set of charges, which had resulted in their exoneration, and the witnesses in the departmental inquiry earlier conducted were also common to those who were prosecutions witnesses in the criminal case. They had also taken the ground that since they have now been acquitted also by the criminal Court of competent jurisdiction, after a full-fledged trial, Rule 12 of the Delhi Police Rules, ibid, cannot be invoked by the respondents, which Rule is applicable only where the departmental inquiry has either not been initiated, or not concluded, till the final verdict in the criminal case, as that Rule cannot be read independently, and has to be read in the overall scheme of the Rules, along with Rules 11 and 15 of those Rules.
13. It was submitted that Rules 11, 12 and 15 of the Delhi Police Rules, ibid, do have the provision for simultaneously holding the departmental proceedings along with the criminal case, but once the applicants had been dealt with departmentally, simultaneously, along with the criminal case, it is no longer open to the Department to now resort to the relevant Rule 12 after their acquittal by the criminal court.
14. The applicants had tried to seek shelter behind the judgment of the Full Bench of this Tribunal in OA No.2816/2008 (Sukhdev Singh & Another v. Government of NCT of Delhi & Others), decided on 18.02.2011, and had reproduced Para 4 of that judgment to submit that from that Full Bench judgment it was clear that the concerned Rule 12 can be resorted to only when the department has not exercised its power to proceed departmentally, simultaneously, while the criminal case was on. It was submitted that once the respondents have already exhausted their disciplinary powers, and conducted a departmental inquiry simultaneously with the criminal case, and then closed it, they cannot be now permitted to initiate another departmental inquiry, that too after the culmination of the criminal case in their acquittal.
15. It was submitted that the applicability of the concerned Rule 12 would arise only in a situation when in the case of parallel proceedings, the departmental inquiry culminates earlier than the criminal case, and in the said departmental inquiry the employees are punished, while later, upon culmination of the criminal case, the employees get acquittal, and in which circumstances, the penalty order is required to be revisited by the departmental authorities, in terms of that Rule 12. However, when exoneration in the departmental inquiry occurs prior to acquittal in the criminal case, Rule 12 shall have no operation whatsoever. It was further submitted that the Criminal Court has not returned any specific finding or opinion that the witnesses were won over, and that too by the applicants.
16. They have taken the further ground that without prejudice to their earlier submissions, merely because the prosecution witnesses did not support the case put forward by the prosecution during the course of the evidence in the criminal case, it cannot be said that the witnesses were won over, much less, by the applicants as the accused persons. They have taken the further ground that when the judgment of acquittal has been rendered, after a full-fledged trial, and upon merits of the case, it is absolutely wrong and misconceived on the part of the respondents to now state in the impugned order that the criminal case had failed on technical grounds, while the acquittal is on merits, and not on technical grounds. The applicants had submitted that they have availed of the other remedies available under the law, which was the letter on hotly contested by the learned counsel for the respondents during the course of the arguments. In the result, the applicants had sought for the following reliefs:
quash and set aside the impugned order placed at Annexure A/1 with all consequential benefits.
direct the respondents to consider and decide the suspension of the applicant as period as spent on duty for all intents and purposes.
Award costs of the proceedings.
17. The case was presented for admission and interim relief before the Vacation Bench, comprising of one of us, Member (J), on 04.06.2013, and reliance was placed on a Full Bench judgment of the Tribunal in the cited case of Sukh Dev Singh (supra) on the basis of which, notices were issued to the respondents on admission and on interim relief, and the case was ordered to be listed on 03.07.2013, and in the meanwhile, the operation of the impugned order was stayed, which interim relief was continued on 03.07.2013 also. The respondents filed MA 1966/2013 on 19.07.2013 praying for vacation of the stay of the interim relief, whereby the inquiry proceedings had been ordered to be stayed, in which notices were issued on 01.08.2013, but which later remained to be decided with the OA itself.
COUNTER REPLY OF THE RESPONDENTS
18. The respondents filed their counter reply to the OA on 11.07.2013, pointing out the circumstances in which the departmental inquiry had been initiated earlier against three Constables, including the late Shri Karambir, who expired on 30.07.2011, and had described the facts of the concerned case in detail, because of which, they had been placed under suspension through order dated 13.06.2001. It is trite law that in exercise of the power of judicial review, this Tribunal is not supposed to re-appreciate the evidence of case, therefore, we are not describing the facts of the concerned case in detail here.
19. It was pointed out that the late Constable Karambir was also involved in the same criminal case, who expired on 30.07.2011, because of which his name was withdrawn from the joint departmental inquiry initiated against him along with the two applicants of this OA, and his suspension period was decided as period spent on duty, through orders dated 09.08.2011.
20. The respondents submitted that when the judgment dated 02.01.2013, delivered by the LMM, was examined under Rule 12 of the Delhi Police Rules, ibid, finding that the judgment had noted that the witnesses, including the complainant, had turned hostile, and the case had finally been decided on technical grounds, due to non-identification of the applicants and faulty investigation, while at the same time, the material witnesses had supported the commission of the crime, which was mentioned in the judgment, the respondents have decided to hold departmental inquiry against the two applicants, even though their names were earlier deleted from the list of personnel with criminal cases pending against them. It was submitted that in the instant case there are sufficient grounds for the respondents to initiate the departmental inquiry under the said Rule 12.
21. It was submitted that the concerned Police Station had registered the case against the five persons including the applicants, and on the basis of incriminatory evidence collected during investigations by the concerned Inquiry Officer, the applicants had also been charge-sheeted, and even the criminal trial Court has in its judgment mentioned that the witnesses have supported the commission of the crime in fact, but the applicants had to be acquitted by the LMM basically due to the material witnesses turning hostile. It was submitted that in such circumstances and cases, the said Rule 12 clearly provides liberty to the Disciplinary Authority for holding a departmental inquiry, as no specific instructions have been issued that in such circumstances the order for initiation of a departmental inquiry cannot be issued, and even the applicants have failed to mention any such instructions to be in existence. It was submitted that after completion of the criminal case, the judgment is required to be examined under the said Rule 12 carefully, and a decision then requires to be taken on merits. It was, therefore, submitted that the applicants are not entitled to any of the reliefs prayed for, and the present OA is frivolous, vexatious and legally not maintainable, and deserves to be dismissed, with costs.
22. Through their MA No.1966/2013 the respondents had prayed for vacation of the interim relief, whereby the disciplinary inquiry proceedings have been ordered to be stayed, and submitted that since the interim relief as well as the main prayer in the OA are same, the interim relief granted by this Tribunal, had virtually decided the OA, at the first instance itself, without even notice to the respondents, and that they were not given a reasonable opportunity to argue on interim relief.
23. It was further submitted that the relief prayed for by the applicants, for staying the departmental proceedings, is not applicable in the instant case, and the Full Bench judgment cited (supra), is distinguishable, since the Full Bench had only dealt with a situation where the acquittal order of the trial Court was passed after the punishment order passed in the departmental proceedings. It was further pointed out that the incumbents before the Full Bench, had been acquitted on merits, but, in the instant case, as is apparent from the judgment of the Trial Court, the two applicants of this O.A. have been acquitted only on technical grounds, as witnesses were won over, and even though the prosecution witnesses had supported the case of the prosecution, but they had somehow testified only against the deceased accused Karambir, and had not identified the other four accused persons, including the two applicants before us, because of which all the accused persons were acquitted. It was further submitted that even before the trial Court no where the complainant had denied the occurrence of the crime, and cheating committed against them, even though they and other witnesses had ultimately laid the blame on one single accused, the one who had expired.
24. It was submitted that the legal issue in the instant case, therefore, is as to whether a person who had been exonerated in the departmental inquiry, and subsequently acquitted from the trial Court only on technical grounds, can be proceeded departmentally further from the stage where from the learned Trial Court had failed to make observations, in respect of holding the accused persons as guilty, particularly, when the trial Court had come out with its mind, and had recorded that the crime in question was indeed committed. It was submitted that since the trial Court had made observations in its judgment that inculpatory evidence was available on record against the deceased accused, the two applicants before us, who had joined him in committing that offence, along with two others, can be proceeded against departmentally. They had, therefore, prayed for vacation of the ex-parte interim order, passed by the Vacation Bench of this Tribunal on 04.06.2013, and for the MA to be allowed, which MA was kept for hearing along with the main OA, and to be decided along with the main OA.
REJOINDER FILED BY THE APPLICANTS
25. The applicants filed their rejoinder on 30.08.2013, and they had taken the legal ground that the said Rule 12 cannot be applied in the present case since the applicants have already been exonerated earlier in the departmental inquiry, which had been simultaneously initiated by the respondents in parallel to the criminal trial, on identical allegations, and in accordance with the Rules made for conduct of the departmental inquiries.
26. It was, therefore, submitted that the respondents cannot apply Rule 12 for now conducting another departmental inquiry proceedings, afresh, as the said Rule 12 applies only when no parallel departmental inquiry on identical facts had been initiated and conducted prior to the completion of the criminal case. It was submitted that applying Rule 12, now, and initiating another departmental inquiry, on the same facts and circumstances, is nothing short of review of orders of the exoneration, already passed earlier, which cannot be a sound proposition of law under the service jurisprudence. It was submitted that since the earlier order has already settled and exhausted the powers of the respondents to proceed against the applicants in departmental proceedings, and no further power to revise their earlier decision is available to them now. It was submitted that just because the respondents have concluded that certain other grounds are now available to them after the criminal trial Courts judgment, they cannot take resort to the impugned action, which has been taken by them with ulterior motives.
27. It was further submitted that merely because the witnesses had turned hostile in the criminal trial, and the case had failed on technical grounds, cannot be held against the applicants now, as non-identification of the alleged offenders is not a technical ground, and in saying so, they had sought shelter behind Para 42 of the judgment of the LMM of the Trial Court, through which they had tried to show that the testimonies of none of the witnesses, either singularly or collectively, were sufficient to hold the applicants guilt, and even the substantive evidence available on record was not sufficient to hold them guilty, as the chain of circumstances was broken in several places, and does not point essentially towards the guilt of the four remaining accused persons, as inculpatory evidence has been available and brought on record only against the deceased accused, and, therefore, the evidence was not found sufficient to convict the other (four) accused persons.
28. It was further submitted that the Delhi Police (Punishment & Appeal) Rules, 1980, are only procedural rules, while the power to punish the delinquent Police personnel is derived from Section 21 of the Delhi Police Act, 1978. It was, therefore, submitted that once the departmental inquiry had been ordered, and taken into its logical end, either by infliction of punishment or exoneration, the exercise of power provided for under Section 21 of the Delhi Police Act, 1978, is completed, and it gets exhausted, and it cannot be revived, and the earlier decision reviewed under the garb of procedural rules. It was, therefore, submitted that the applicants cannot be put to any further harassment and mental agony, which they have been undergoing for the last three years since June, 2010, while they were, in the meanwhile, exonerated both in the earlier departmental inquiry, as well as in the criminal case.
29. Along with the rejoinder they had filed a copy of the further Order passed by the respondents on 31.05.2013, which they had not produced before the Vacation Bench on 04.06.2013, while obtaining the ex-parte interim relief order, and it is seen that through this Order, even before the interim order had been passed by the vacation Bench on 04.06.2013, a decision had already been taken by the respondents to appoint an Inquiry Officer to conduct a disciplinary inquiry afresh against the two applicants before us. The applicants had assailed this action dated 31.05.2013 too, as being illegal, as the said Rule 12 can be resorted to only when the Department had not earlier exercised its power to proceed in parallel departmentally, while the criminal case was still on, and once they have exhausted their disciplinary power, and conducted a departmental inquiry simultaneous to criminal case, they cannot now be permitted to initiate a second departmental inquiry, that too after their acquittal in the criminal case. They had, therefore, prayed that the counter reply of the respondents is without any merit, and a second departmental inquiry, on the same allegations, cannot be thrust upon the applicants.
ARGUMENTS
30. Heard. The case was argued forcefully and vehemently by both the sides, on three dates of hearing, on 03.09.2013, 04.09.2013 and on 17.09.2013, and was, thereafter, reserved for orders.
31. The learned counsel for the applicants had, on 04.09.2013, filed copies of the judgment dated 18.02.2011 of the Full Bench in OA No.2816/2008, already mentioned herein before, in support of his contention that a second disciplinary inquiry could not have been ordered by the respondents afresh once they had exonerated the applicants earlier. He had also filed a copy of the judgment of the Honble Apex Court in State of Rajasthan v. B.K.Meena and Others, (1996) 6 SCC 417, and had relied upon para 14 of the said judgment, in which it has been held by the Honble Apex Court that there is no legal bar for both the departmental proceedings and the criminal trial to go on simultaneously, which had been the case in this case, and he submitted that the Honble Apex Court had held that the interest of the delinquent officer lies in a prompt conclusion of the disciplinary proceedings, and if he is not guilty of the charges, his honour should be vindicated at the earliest possible, and if he is guilty, he should be dealt with promptly according to law, and it is not in the interest of administration that persons accused of serious misdemeanor should be continued in office indefinitely, for long periods, awaiting the result of the criminal proceedings. He had relied upon this judgment and sought protection of this judgment of the Honble Apex Court, to submit that such a simultaneous departmental inquiry against the applicants had already been culminated by the earlier order, dated 25.04.2012, passed by the respondents, through Annexure A/5.
32. The learned counsel for the applicants had also filed a copy of the judgment of the Honble Apex Court in State Bank of India and Others v. S.N.Goyal, (2008) 8 SCC 92, and had relied upon Paras 26 and 28 of that judgment to submit that when once an authority exercising quasi judicial powers takes a final decision, it cannot on its own review its own earlier decision, unless the relevant statute or rules permit such review, and that such quasi judicial authority becomes functus officio when the order is pronounced and notified to the parties concerned. The Honble Apex Court has held in that judgment that when an order is noted in an office noting in a file, but it was not pronounced, published or communicated, nothing prevents the authority from correcting it, or altering it, for valid reasons, but when once the order is pronounced, or published, or notified, or communicated, the authority will become functus officio, and the learned counsel for the applicants, therefore, sought protection behind this judgment of the Honble Apex Court.
33. The learned counsel for the respondents, on the other hand, emphasized on the point that the applicants had approached this Tribunal without the statutory remedies as available to them having been exhausted. He had further pointed out and argued that after the earlier order of 19.03.2013 had been passed, which the applicants had impugned in this OA at Annexure A/1, another Order dated 31.05.2013 had also already been passed against the applicants, instituting the disciplinary inquiry against them afresh, which they had suppressed, and had not produced before the Vacation Bench on 04.06.2013, and because of passing of that subsequent Order, the cause of action, in any case, had eclipsed.
34. In support of this argument, she had sought shelter behind the judgment of the Honble Apex Court in Shipping Corporation of India Ltd. v. Machado Brothers and Others, AIR 2004 SC 2093 and relying upon Para 17 of the said judgment, she had submitted that in view of the subsequent Order dated 31.05.2013 having been passed, the first (impugned) Order dated 19.03.2013 had disappeared, and, therefore, consequently, the cause of action arising therefrom, had also disappeared, making this O.A. itself infructuous. Further, relying on Paragraphs 21 to 31 of that Apex Court judgment, she submitted that the Honble Apex Court had held that interlocutory orders are passed in aid of the final orders, and not vice versa, and, therefore, no interlocutory order will survive after the original proceedings had come to an end upon dismissal of the suit, and that the Honble Apex Court had held that in fact, if the suit had become infructuous, the consequences of dismissal of such suit cannot cause any prejudice to the plaintiff, and, as a matter of fact, the consequences should be to the contrary, that is the continuance of such an infructuous suit would cause prejudice to the defendant. She had, therefore, submitted that the Honble Apex Court had held that the continuation of a suit, which had become infructuous by disappearance of the cause of action, would amount to an abuse of the process of the Court, and interest of justice should require such suit should have to be disposed of as having become infructuous, and an application, in this regard, under Section 151 of the CPC was maintainable.
35. Drawing sustenance from the above-cited judgment, the learned counsel for the respondents submitted that independently, the order dated 19.03.2013, impugned in this OA, cannot now be challenged, as it had eclipsed with the issuance of the another subsequent Order dated 31.05.2013, even before the present OA was filed before this Tribunal on 03.06.2013, with a prayer for urgent listing, and the same had been entertained by the Vacation Bench, after the Order at Annexure X-1, dated 31.05.2013, filed along with their rejoinder by the applicants themselves, had already been passed. She had, therefore, further submitted that the applicants of this O.A. had not approached this Tribunal with clean hands, in their having impugned the earlier order, and having suppressed the subsequent order, while praying for the interim relief, which was granted to them on 04.06.2013.
36. The learned counsel for the respondents had, further, submitted that the Rule 12 of the Delhi Police Rules, ibid, necessarily requires the respondents' authorities to exercise their powers under that Rule, and closely scrutinize and examine the findings arrived at by the Criminal Trial Court, once the Judgment of the concerned criminal trial Court is available, and that the respondents cannot be faulted, or cannot be said to have erred, by virtue of their having acted strictly in accordance with the mandatory requirement of the said Rule 12. She submitted that the said Rule 12 itself is not under challenge, and when the Order dated 19.03.2013 impugned in this O.A. was only a preliminary order, it was clear that the departmental remedies had not been exhausted by the applicants before approaching this Tribunal against that order. She had further submitted that under the said Rule 12, which has not been challenged by the applicants, the respondents are necessarily required to examine the findings of the Criminal trial Court, and ascertain therefrom the nature of acquittal, as to whether it is clean, or is such that it may invite initiation of departmental proceedings against the concerned delinquent police personnel, which procedure had been correctly and strictly followed by the respondents in the instant case.
37. She had submitted that there is a difference between `clean exoneration' and `clean acquittal' and that the judgment of the LMM of the Criminal trial Court as produced by the applicants themselves showed that they had not been given the benefit of a clean exoneration or clean acquittal. Further, she had filed a copy of an Order of this Tribunal dated 16.01.2013 in OA No.808/2012, Shri Kamal Singh v. Municipal Corporation of Delhi, passed by way of an oral Order, by a Single Bench of one of us, Member (J), in which, relying upon the same cited judgment of the Honble Apex Court in Shipping Corporation of India Ltd. v. Machado Brothers & Others (supra), the contention had been upheld that when once only the prayer made in the OA had been granted by the respondents themselves, the OA had become infructuous, and no cause of action subsisted in the pending OA, thus there was no question of amendment of pleadings in the proceedings bereft of substituting the cause of action. (Emphasis Supplied). She had tried to draw sustenance from this order to submit that after issuance of the subsequent order dated 31.05.2013 under the said Rule 12, the original cause of action for filing the present O.A. had disappeared, and the O.A. against the earlier order dated 19.03.2013 could not survive.
38. The learned counsel for the respondents had further filed on 17.09.2013 a copy of the judgment of the Hoble Apex Court in the State of Assam and Another v. J.N.Roy Biswas, (1976) 1 SCC 234, wherein it was held by the Honble Apex Court, in Para 4 of its judgment, that no Government servant can urge that if for some technical or other good grounds, procedural or other, the first inquiry or punishment or exoneration is found to have been bad in law, then a second inquiry cannot be launched. It was held by the Honble Apex Court that it can be so launched, but once a disciplinary case has closed and the official reinstated, presumably on full exoneration, the chagrined Government cannot restart the exercise in the absence of a specific power to review or revise, vested by the rules in some Authority. She had pleaded, firstly, that in the present case, the disciplinary case against the applicants had not been fully closed, inasmuch as the order in respect of the treatment of the period of their suspension had not been passed at all, and had been left open to be passed after conclusion of the criminal case, and secondly, that the powers vested by said Rule 12 specifically provided for such a second disciplinary inquiry to be launched, in the manner in which it has been done, in case the earlier exoneration of the delinquents is found to have been bad in law, after going through the judgment of the Criminal Trial Court.
39. The learned counsel for the respondents had further cited the case of Head Constable Rajpal Singh and Others v. Union of India and Others, ATFBJ 1997-2001 Page 347, in support of her contention that the said Rule 12 could be so utilized by the respondents, as it prescribes the appropriate manner and procedure for arriving at a decision, after a close scrutiny of the judgment of the Criminal Trial Court.
FINDINGS
40. We have given our anxious considerations to the facts of the case, have perused the pleadings on record, and considered the case-law cited by both the sides. The learned counsel for the respondents had also deposited two files regarding the disciplinary inquiry earlier conducted against the three delinquent Police Constables, one of whom is no more, and we have perused the said files carefully.
41. The initial objection of the learned counsel for the respondents in the two applicants not having come with clean hands before this Tribunal, as discussed in para-35/earlier, has some merit. But we do not think it proper to reject the O.A. on this ground alone, without considering the case of the applicants on merits also.
42. The first point which comes to our notice is that the common disciplinary inquiry had been initiated against three Constables - two applicants before us, and one late Shri Karamvir, who expired on 30.07.2011. On the other hand, from a copy of the judgment/Order of the LMM, Shri Deepak Dabas, dated 02.01.2013, it is seen that in the case before him, there were 5 accused persons, and not 3, and though the said late Shri Karambir Singh was named as Accused No.1, and proceedings, in respect of him, were abated vide Order dated 04.05.2012, after he had passed away, the learned trial Court had considered the evidence against the remaining 4 persons, namely, Accused No.2, Accused No.3, Accused No.4 and Accused No.5, S/Shri Devender Kumar, Udai Singh, Parveen Kumar and Surender Kumar respectively, among whom only the two applicants before us were Policemen, and they were only two of the four remaining accused persons against whom, the criminal trial had taken place. Therefore, it cannot be allowed to be contended that the earlier joint departmental enquiry was conducted on the same set of facts, as, obviously, after investigation of the Criminal case, the Investigating Officer had discovered the aspect of criminality on the part of two non-Policemen also intertwined in the commission of the offence concerned, the actual proof regarding the commission of which offence has been accepted to have been proved to the hilt by the LMM in his judgment, though he had to acquit all the four accused on technical grounds.
43. The charges as framed by the LMM against the five accused before it in the said criminal trial, have not been filed either by the applicants or by the respondents in this case, but the contents of those charges have been discussed in quite detail by the LMM in his judgment. It is quite clear that the charges against the three persons in the earlier joint departmental inquiry could not have been the same, and overlapping after juxtaposition with the charges as framed against 5 accused persons in a criminal case, after a thorough investigation by the I.O. of that Criminal case. Therefore, it is clearly apparent that the charges in the earlier joint departmental inquiry against three of the five accused persons in the criminal case may have overlapped only to a certain extent, since in the criminal case, two of the accused, namely, Shri Devender kumar, Accused No.2, and Sh. Udai Singh, Accused No.3, were not police personnel. Since the charges could not have been the same in both the earlier joint disciplinary inquiry, and the subsequent criminal case, the case-law cited by the learned counsel for the applicants cannot come to the applicants rescue, as those cases relate to the cases where the delinquent Government employees proceeded against in the departmental inquiry were the only accused persons in the criminal case also before the criminal trial Court, which is not the case in this case. Therefore, the case-law, relied upon by the learned counsel for the applicants cannot be said to apply to the instant case, as the facts of those cases are not, on all fours with the facts of the present case.
44. During the arguments in this case, our attention had been drawn towards paragraphs 22 to 30 and paragraphs 40 to 43 of the judgment of the LMM. In paragraphs 41 of its judgment, the LMM has noted that the testimony of the PWs shows that almost all the public witnesses, including the complainant, had supported the prosecution case to a large extent, but that they had not supported the prosecution version on the point of identity of the four remaining accused persons. Some of the important witnesses had failed to identify all the other four accused persons, except the learned deceased Accused No.1, who had already expired during the pendency of the trial of the case.
45. Further the LMM has noted that the testimony of the police officers is also not sufficient to prove all essential ingredients of the offence in question (beyond any reasonable doubt). From this finding, it appears that the testimony of the prosecution witnesses was sufficient at least to prove some of the ingredients of the offence in question, which may have been sufficient on the touchstone of preponderance of probabilities, even though it was not sufficient to prove all the essential ingredients of the offence in question, beyond any reasonable doubt, which is the touchstone for the standard of proof in the Criminal cases. Therefore, if the respondents have come to the conclusion that there was something worth while still left in the case, to be inquired into, and tested on the touchstone of preponderance of probabilities under the powers available to them under the relevant Rule 12, they cannot be faulted on that account, because even the LMM had also come to the conclusion that somehow the evidence available on record is inculpatory only against the deceased accused Karambir Singh, and the said evidence is not sufficient to convict the other four accused persons before the learned trial Court, including the two applicants before us. Therefore, it cannot be claimed by the applicants that there was a clean acquittal, and that no part or element of liability of the sequence of events, which formed the offence concerned in the instant case, which had led to the criminal trial, could be fastened, attached, or affixed to them. If even an iota of such liability in respect of the sequence of events leading to the commission of the concerned offence can be fastened to, attached, or affixed or ascribed to the two applicants before us on the touchstone of preponderance of probabilities, under the Service law they have to be pinned down upon that, in spite of their having been acquitted by the LMM in the Criminal Trial, because such fastening, attachment, affixing, or ascribing of their guilt in the whole sequence of events could not be proved by the prosecution on the touchstone of beyond any reasonable doubt, which higher standard of proof is applicable only in the Criminal trials.
46. The Honble Apex Court held in the case of Commissioner of Police and Anr. vs. Mehar Singh delivered on 02.07.2013 in Civil Appeal No.4842/2013 arising out of SLP (Civil) No. 38886 of 2012 with Civil Appeal No.4965 of 2013 arising out of SLP (Civil) No.4057 of 2013 in the case of Commissioner of Police, New Delhi & Anr. vs. Shani Kumar in regard to the scope, powers and functions of the Screening Committee as follows:-
20. We find no substance in the contention that by cancelling the respondents candidature, the Screening Committee has overreached the judgments of the criminal court. We are aware that the question of co- relation between a criminal case and a departmental inquiry does not directly arise here, but, support can be drawn from the principles laid down by this Court in connection with it because the issue involved is somewhat identical namely whether to allow a person with doubtful integrity to work in the department. While the standard of proof in a criminal case is the proof beyond all reasonable doubt, the proof in a departmental proceeding is preponderance of probabilities. Quite often criminal cases end in acquittal because witnesses turn hostile. Such acquittals are not acquittals on merit. An acquittal based on benefit of doubt would not stand on par with a clean acquittal on merit after a full fledged trial, where there is no indication of the witnesses being won over. In R.P. Kapur v. Union of India[11] this Court has taken a view that departmental proceedings can proceed even though a person is acquitted when the acquittal is other than honourable.
21. The expression honourable acquittal was considered by this Court in S. Samuthiram. In that case this Court was concerned with a situation where disciplinary proceedings were initiated against a police officer. Criminal case was pending against him under Section 509 of the IPC and under Section 4 of the Eve-teasing Act. He was acquitted in that case because of the non-examination of key witnesses. There was a serious flaw in the conduct of the criminal case. Two material witnesses turned hostile. Referring to the judgment of this Court in Management of Reserve Bank of India, New Delhi v. Bhopal Singh Panchal[12], where in somewhat similar fact situation, this Court upheld a banks action of refusing to reinstate an employee in service on the ground that in the criminal case he was acquitted by giving him benefit of doubt and, therefore, it was not an honourable acquittal, this Court held that the High Court was not justified in setting aside the punishment imposed in departmental proceedings. This Court observed that the expressions honourable acquittal, acquitted of blame and fully exonerated are unknown to the Criminal Procedure Code or the Penal Code. They are coined by judicial pronouncements. It is difficult to define what is meant by the expression honourably acquitted. This Court expressed that when the accused is acquitted after full consideration of prosecution case and the prosecution miserably fails to prove the charges leveled against the accused, it can possibly be said that the accused was honourably acquitted. In light of above, we are of the opinion that since the purpose of departmental proceedings is to keep persons, who are guilty of serious misconduct or dereliction of duty or who are guilty of grave cases of moral turpitude, out of the department, if found necessary, because they pollute the department, surely the above principles will apply with more vigour at the point of entry of a person in the police department i.e. at the time of recruitment. If it is found by the Screening Committee that the person against whom a serious case involving moral turpitude is registered is discharged on technical grounds or is acquitted of the same charge but the acquittal is not honourable, the Screening Committee would be entitled to cancel his candidature. Stricter norms need to be applied while appointing persons in a disciplinary force because public interest is involved in it.
22. Against the above background, we shall now examine what is the nature of acquittal of the respondents. As per the complaint lodged by Ramji Lal, respondent Mehar Singh and others armed with iron chains, lathis, danda, stones etc. stopped a bus, rebuked the conductor of the bus as to how he dared to take the fare from one of their associates. Those who intervened were beaten-up. They received injuries. The miscreants broke the side window panes of the bus by throwing stones. The complainant was also injured. This incident is undoubtedly an incident affecting public order. The assault on the conductor was pre-planned and pre- meditated. The FIR was registered under Sections 143, 341, 323 and 427 of the IPC. The order dated 30/01/2009 passed by the Additional Chief Judicial Magistrate, Khetri shows that so far as offences under Sections 323, 341 and 427 of the IPC are concerned, the accused entered into a compromise with the complainant. Hence, learned Magistrate acquitted respondent - Mehar Singh and others of the said offences. The order further indicates that so far as offence of rioting i.e. offence under Section 147 of the IPC is concerned, three main witnesses turned hostile. Learned Magistrate, therefore, acquitted all the accused of the said offence. This acquittal can never be described as an acquittal on merits after a full fledged trial. Respondent - Mehar Singh cannot secure entry in the police force by portraying this acquittal as an honourable acquittal. Pertinently, there is no discussion on merits of the case in this order. Respondent - Mehar Singh has not been exonerated after evaluation of the evidence.
23. So far as respondent - Shani Kumar is concerned, the FIR lodged against him stated that he along with other accused abused and threatened the complainants brother. They opened fire at him due to which he sustained bullet injuries. Offences under Sections 307, 504 and 506 of the IPC were registered against respondent - Shani Kumar and others. Order dated 14/5/2010 passed by the Sessions Judge, Muzaffarnagar shows that the complainant and the injured person did not support the prosecution case. They were declared hostile. Hence, learned Sessions Judge gave the accused the benefit of doubt and acquitted them. This again is not a clean acquittal. Use of firearms in this manner is a serious matter. For entry in the police force, acquittal order based on benefit of doubt in a serious case of this nature is bound to act as an impediment.
(Emphasis supplied).
47. Since in his finding, as had been recorded in the last sentence of Paragraph 41, the LMM has let off of the four remaining accused before him, on account of evidence before him not being sufficient to prove all the essential ingredients of the offence in question, it cannot be claimed by the applicants that it was a case of clean acquittal and that no element of delinquency or involvement in the commission of that offence which was proved to have taken place can be affixed to them. The respondents cannot, therefore, be restrained from looking into the matter further, and invoking the said Rule 12 to now examine afresh the level or quantum of delinquency of the applicants before us, in an offence which the Criminal Court has since held to have taken place.
48. We may further record that the Order dated 25.04.2012, Annexure A/5 was not in itself a complete and final order. At that time, all the ramifications of the crime had not even been investigated by the Investigating Officer of the concerned Criminal case FIR. The two applicants before us had been exonerated from the incomplete charge as had then been brought out in the departmental inquiry proceedings against them, as if the three Policemen were the only persons involved in having committed the Crime, and the said charges could not be proved, and they were reinstated in service from suspension with immediate effect. However, that order was not final as per the requirements of the Delhi Police Rules ibid, inasmuch as no orders regarding the treatment of the period of their suspension had been passed in the said order, and it was specifically stated that the treatment of their suspension period will be decided after the decision of the criminal case. Therefore also, the applicants cannot be allowed to plead that the departmental enquiry case against them had been fully and finally closed earlier, and that the respondents ought to be retrained from now acting on the basis of the judgment of the LMM in the Criminal case.
49. Now, after the decision of the criminal trial Court has become available, and when once the respondents have found that the findings of the Criminal trial Court, in the judgment of the LMM, puts an obligation upon them for the matter to be re-examined under Rule 12 of the Delhi Police Rules ibid, the respondents authorities cannot be faulted on that account. The learned counsel for the applicants had valiantly emphasized that when the impugned Order dated 19.03.2013 itself recorded that as per the judgment of the LMM, the case had failed on technical grounds, even though the authority concerned came to the conclusion that as per the judgment, the witnesses including the complainant had been won over, they could not have then proceeded against them under the said Rule 12 of the Delhi Police Rules ibid. We do not find any merit in this contention, because the material witnesses had supported the prosecutions case that the crime was indeed committed, though the applicants before us, who were Accused No.4 and 5 in the said criminal case, were not identified by the witnesses before the criminal trial Court.
50. Moreover, there is also merit in the arguments of the learned counsel for the respondents that when once the order dated 31.05.2013 had already been passed for the two applicants before us, to be dealt with departmentally under Rule 12 of the Delhi Police Rules, 1980, for gross misconduct, lack of integrity, and an act unbecoming of a police officer, which had rendered them liable to be dealt with departmentally, under Section 21 of the Delhi Police Act, 1978, and even the Inquiry Officer had been appointed, and OA had been filed on 03.06.2013, challenging only the preliminary Order dated 19.03.2013, which had become infructuous in view of the operation of the judgment of the Hon'ble Apex Court in Shipping Corporation of India Ltd. v. Machado Brothers and Others (supra), and the Order of this Tribunal dated 16.01.2013 in OA No.808/2012 in Shri Kamala Singh(supra), therefore, the present OA deserves to be dismissed.
51. Therefore, the O.A. is dismissed. In view of the orders passed in OA, the MA No.1966/13 has become infructuous, which is also disposed of accordingly. But there shall be no order as to costs. Registry is directed to return the two departmental records/files, produced by the learned counsel for the respondents, to her.
(A.K. Bhardwaj) (Sudhir Kumar) Member (J) Member (A) cc.