Central Administrative Tribunal - Delhi
H S Saini vs Home Affairs on 13 April, 2023
1 O.A. No.3820 of 2018
Central Administrative Tribunal
Principal Bench,, New Delhi
O.A. No.3820
3820 of 2018
Orders reserved on : 27.03.2023
Orders pronounced on : 13.4.2023
3
Hon'ble Mr. R.N. Singh, Member (J)
Hon'ble Shri Sanjeeva Kumar
Kumar, Member (A)
H.S. Saini (HUKUM SINGH SAINI)
Ex. INS, DELHI POLICE No.D-1/326,
No.D 1/326,
R/o 16/10 BLOCK A1,
SANT NAGAR, BURARI,
DELHI
DELHI-110084
...Applicant
(through Advocate Shri Sourabh Ahuja
Ahuja)
Versus
1. Union of India,
Through Secretary, Ministry of Home Affairs,
North Block, New Delhi
2. Commissioner of Police,
Through
Deputy Commissioner of Police,
(VIP Security Unit), Vinay Marg, Delhi
... Respondents
(through Advocate Shri Jagdish N.
N.)
ORDER
Hon'ble Mr. R.N. Singh, Member (J) :
By way of the present OA, the applicant has challenged the order dated 24.01.2018 vide which the President by virtue of power vested under Rule 9 of CCS (CCA) Rules, 1972 has decided to accept the advi advice e of 2 OA No. 3820 of 2018 Union Public Service Commission and to impose a penalty of withholding of 20% (twenty percent) of the monthly pension otherwise admissible to the applicant for a period of five years.
2. In the present OA, the applicant has prayed for the following reliefs:-
"a) Set aside the penalty of 20% monthly cut in the pension of the applicant for 5 years and release the regular intact monthly pension.
b) Pay the gratuity of the applicant with 22% interest p.a. as prescribed by the RBI till the date of its release.
c) Further grant any other relief as deemed fit and proper in favour of the applicant."
3. Pursuant to notice, the respondents have filed their counter reply and they have opposed the claim of the applicant and have also prayed for dismissal of the OA with costs against the applicant. The applicant has filed rejoinder and has reiterated his claim as made in the OA.
4. We have perused the pleadings available on record and have also heard the learned counsels for the parties.
5. The undisputed facts are that the applicant joined the services of the respondents as Sub-Inspector in 1969 3 OA No. 3820 of 2018 and was later promoted to the post of Inspector. The case FIR No.144/03 under Section 420, 468/471 and 34 of IPC was registered at Police Station Khajuri Khas on the complaint of one Smt. Surinder Kaur. The investigation of the said FIR was entrusted to the applicant while being posted with Crime Cell, Police Station Bhajanpura, North East District. The complaint dated 26.7.2004 was made by Smt. Brinda Karat, Member, Parliament and General Secretary, of All India Democratic Women's Association. In the said complain, it was alleged that the applicant had been a corrupt official and irregularities and illegalities committed by the applicant in investigation of the aforesaid case FIR No.144/03 as have been precisely noted by the UPSC, which are reproduced herein below:-
"(i) he examined the negative witnesses as prosecution witnesses who did not support the prosecution;
(ii) the bail application moved by the accused had important official facts and details of investigation, which generally the IO was supposed to know, hence it appears that the CO might have passed on the information to the accused as their case was pleaded by his son;
and
(iii) he failed to verify the genuineness of the documentations produced by the accused person."
4 OA No. 3820 of 2018
6. The said complaint from Mrs. Karat lead to registration of case FIR No.387/05 dated 15.9.2005 under Sections 196/120B of IPC with PS Bhajanpura, District North East Delhi. The said case FIR was investigated by the Delhi Police and a closure report as per the provisions under Section 169 Cr.P.C. was filed by the Delhi Police before the learned Court of competent jurisdiction with a request to accept the same. The objection petition was filed by the objector and the learned CMM/ME/KKD/Delhi vide a detailed order dated 17.9.2013 accepted the closure/cancellation report. However, in the meantime, the applicant retired from service on attaining the age of superannuation w.e.f. 31.7.2008. On the same set of allegations, list of witnesses, documents etc., as being in the case FIR No.387/05, a departmental proceeding was also initiated against the applicant vide order dated 31.7.2008, i.e., the date of his retirement. The Enquiry Officer vide his report dated 3.5.2012 held the charges 'proved' against the applicant. The Disciplinary Authority agreed with the Enquiry Officer's report, supplied a copy of the same to the applicant to enable him to make representation, if any. The Disciplinary Authority has tentatively agreed with the findings of the Enquiry Officer 5 OA No. 3820 of 2018 proposed to impose a penalty of suitable cut in the pension. The matter was referred to the UPSC for their statutory advice and the UPSC tendered their advice dated 19.9.2017 recommending withholding of 20% of the monthly pension otherwise admissible to the applicant for a period of five years. The applicant submitted his representation against the aforesaid proposed penalty and the advice in this regard. The competent Disciplinary Authority passed the aforesaid impugned penalty order dated 24.1.2018.
7. Shri Ahuja, learned counsel for the applicant has argued that the aforesaid case FIR No.387/05 was registered on the basis of allegations levelled against the applicant by the said Smt. Karat qua the irregularities in the investigation done by him in case FIR No.144/03. The said impugned penalty order is also based on the departmental enquiry conducted by the respondents for the same allegations, documents and witnesses. He has further argued that in view of the provisions of Rule 12 of the Delhi Police (Punishment & Appeal) Rules, 1980, the departmental proceeding was required to be closed and/or the applicant was entitled to be exonerated from the 6 OA No. 3820 of 2018 allegations levelled against him in the departmental proceeding. He has further placed reliance on the judgment dated 18.2.2011 of the Larger Bench of this Tribunal in OA No.2816/2018, titled Sukhdev Singh and another vs. Govt. of NCT of Delhi and others (Annexure A/14).
8. On the other hand, Mr. Jagdish N., learned counsel appearing for the respondents, has vehemently opposed the claim of the applicant by referring to the assertions made by the respondents in the counter reply. He has argued that there is no bar in the relevant rules for holding simultaneous criminal and departmental proceedings in the case of same set of allegations. He has added that though cancellation/closure report in the said case FIR was accepted by the learned Trial Court, however, the departmental proceeding initiated against the applicant has been taken to its logical conclusion in accordance with the relevant rules, instructions and by following the principles of natural justice. He has argued that there is no illegality in passing the impugned order and intervention of the Tribunal while exercising the power of judicial review is not warranted. 7 OA No. 3820 of 2018
9. Rule 12 of the Delhi Police (Punishment & Appeal) Rules, 1980 reads as under:-
"12. Action following judicial acquittal. - When a police officer has been tried and acquitted by a criminal court, he shall not be punished departmentally on the same charge or on a different charge upon the evidence cited in the criminal case, whether actually led or not unless-
(a) the criminal charge has failed on technical grounds, or
(b) in the opinion of the court, or on the Deputy Commissioner of Police the prosecution witnesses have been won over; or
(c) the court has held in its judgment that an offence was actually committed and that suspicion rests upon the police officer concerned; or
(d) the evidence cited in the criminal case disclose facts unconnected with the charge before the court which justify departmental proceedings on a different charge; or
(e) additional evidence for departmental proceedings is available."
10. In Sukhdev Singh (supra), the Larger Bench of this Tribunal has authoritatively held that there is no bar, express or implied in the Rules of 1980 for holding simultaneous criminal and departmental proceedings. However, if in the criminal case acquittal is such that departmental proceedings cannot be held for the reasons as mentioned in Rule 12, the order of penalty shall be re- 8 OA No. 3820 of 2018 visited. The judicial verdict would have precedence over decision in departmental proceedings and the subordinate rank would be restored to his status with consequential relief.
11. Learned counsel for the applicant has also placed reliance on subsequent orders/judgments of this Tribunal in OA No.3873/2018, titled Dilbagh Singh vs. Govt. of NCTD and others, decided on 23.9.2022 and OA No.3496/2015, titled Constable Vijay Pal vs. Govt. of NCTD and others, decided on 10.1.2023, wherein the judgment of the Larger Bench of this Tribunal in Sukhdev Singh (supra) has been followed. We further find that the impugned order dated 24.1.2018 records article of charges, submission of inquiry report, supply of the inquiry report and UPSC advice to the applicant and in last but one paragraph, i.e., in para 6, it is recorded that his representation has been examined and is found devoid of merit. This clearly indicates that none of the grounds raised by the applicant has been dealt with by the authority concerned. In the said paragraph, it is also recorded that further comments of the Disciplinary Authority was obtained on representation of the applicant. 9 OA No. 3820 of 2018 However, it is admitted case that such comments have not been supplied to the applicant. Moreover, when the impugned order is stated to have been by the Disciplinary Authority of the President, it is vague as to from which authority comments have been obtained and taken into consideration while passing the order of penalty. Thus, the impugned order is found to be cryptic and in violation of principles of natural justice.
12. In view of the aforesaid, the impugned order dated 24.1.2018 deserves to be set aside. The same is accordingly set aside. We would have remitted the matter to the competent authority with liberty to pass fresh order. However, keeping in view the provisions of Rule 12 of the Rules ibid with authoritative pronouncement of the Larger Bench of this Tribunal in Sukhdev Singh (supra) and further that the applicant has attained the age of 75 years (approximately) and who appears to have suffered already in the aforesaid case FIR as well as in departmental proceeding, we are of the view that the matter deserves to be put to quietus and it is ordered accordingly. The applicant shall be entitled for all consequential benefits, i.e., restoration of his pension, arrears thereof with 10 OA No. 3820 of 2018 interest as admissible to GPF. The aforesaid exercise shall be completed as expeditiously as possible and in any case within eight weeks of receipt of a copy of this Order.
13. The present OA is allowed in the aforesaid terms. However, in the facts and circumstances, there shall be no order as to costs.
(Sanjeeva Kumar) (R.N. Singh) Member (A) Member (J) /ravi/