Central Administrative Tribunal - Delhi
Now Resident Of vs Union Of India Through on 4 May, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH : NEW DELHI Original Application No.2393/2011 New Delhi, this the 4th day of May, 2012 Coram: Honble Mr. G. George Paracken, Member (J) Honble Dr. Veena Chhotray, Member (A) Attar Singh, Aged about 54 years, S/o Late Sher Singh, Rtd. Assistant, Ministry of Defence, At JS & CAOs Office, E Block, Dalhousie Road, New Delhi 110 011 Now resident of: Village & Post Shahabad Mohammad Pur, 18, Rly. Crossing, Harijan Basti, New Delhi 110 061 Applicant (By Advocate: Shri H.P. Chakrovorti) Versus 1. Union of India through The Secretary, Ministry of Defence, South Block, New Delhi-110 011 2. The Joint Secretary & Chief Administrative Officer, Ministry of Defence, E Block, Dalhousie Road, New Delhi 110 011 3. The Secretary, Department of Personnel, Training & Administrative Reform, South Block, New Delhi 011 Respondents (By Advocate: Shri S.M. Arif) O R D E R
By Dr. Veena Chhotray:
The applicant, an ex-Assistant under the Ministry of Defence has challenged the penalty of compulsory retirement on the charge of attempting to bribe an Officer for selection of certain aspiring candidates. The OA seeks the following reliefs:-
8.1 allow the OA and quash the impugned Memorandum of Charge dated 20.01.1999 (Ann. A-1), Penalty Order dated 31.08.2010 (Ann. A-2) and Appellate Order dated 14.03.2011 (Ann. A-3) with full back wages and all consequential benefits; and consequently 8.2 direct the respondents to reinstate the petitioner and release all the benefits including promotional benefits at par with junior counter parts as if no penalty was imposed upon the petitioner.
2. The applicant and the respondents would be represented respectively by the learned counsels, Shri H.P. Chakravorti and Shri S.M. Arif.
3. A major penalty disciplinary proceeding under the CCS (CCA) Rule 14 was initiated against the applicant vide the Memorandum dated 28.10.1999 on the following Article of Charge (Annex A/1):-
That Shri Attar Singh S/o Late Shri Sher Singh, during the month of November 1977, while working as a government servant in his capacity as Assistant in Air Headquarters committed grave official misconduct by attempting to offer bribe to Major Sanjay Kapoor of No.24 Services Selection Board by offering him an amount of Rs. 1 lakh for getting official favours for selection of three service candidates, who were to be interviewed by the Boards at Bangalore. Shri Attar Singh committed the above acts for monetary considerations and was caught redhanded while offering the bribe on the complaint of Major Kapoor.
By the above acts, Shri Attar Singh failed to maintain absolute integrity and acted in a manner unbecoming of a government servant and thereby contravened the provisions of Rule 3 (1)(i) and (iii) of CCS (Conduct) Rules, 1964. The Statement of Imputation had detailed about the applicant having worked earlier in the Army HQ Recruitment Branch and thus having a good idea about the Army selections. It had been alleged that during the year 1997 he had made contacts with three officials viz. Subedar Dinesh Kumar, Naib Subedar Dalip Singh Mehla and Company Havildar Major Devprakash, who were aspiring candidates for selection as Officers in the Army. Further, collecting huge money from them and visiting the residence of Major Sanjay Kapoor, the Group Testing Officer of the relevant Selection Board on 12.11.1997, offering to pay the money so collected had also been alleged. The said Major Kapoor had kept his senior officials informed and also lodged a complaint with the Army Authorities regarding the offer made by the delinquent official.
It is further stated that on 13.11.1997 at about 11 a.m. at the Rajinder Sinhji Institute, Bangalore, the applicant was caught red-handed by the Army officials while he was attempting to offer the bribe to Major Kapoor, in the presence of certain other Army officials. He had been found in possession of certain documents and letters showing his involvement in the matter. The intended bribe amount of rupees one lakh had also been recovered from him.
Based on the complaint of the Sub-Area Commander, a criminal case No. RC 36 (A)/97 was registered by the CBI.
4. Inquiry Report dated 17.10.2008 (Annex A-2-1) A regular enquiry was conducted in which the CO participated. Even though the enquiry was initiated soon after the issuance of the Charge Memorandum by appointing the first Inquiry Officer in December 1999 itself, owing to a host of factors (like change of IOs; the adjournment of the proceedings on the COs representations on ground of pendency of the criminal case; the time taken by the IO/DA in responding to various requests made by the CO from time to time; besides completion of procedural requirements) the I.R. could be submitted only in October, 2008. Besides the vast array of documentary evidence both from prosecution and defence, 8 prosecution witnesses and 2 defence witnesses had deposed. Though the permission for engaging a legal practitioner was not granted, representation through a Defence Assistant was agreed to. The Inquiry Report reveals a detailed consideration of the written briefs/arguments by the CO as well as submissions by defence witnesses.
In the detailed IR, running into 30 pages, in the concluding portion of the report four issues raised by the CO had been crystallized. On consideration of COs arguments and the totality of the evidence adduced during the enquiry, the IO had recorded his own detailed findings in respect of each. These four issues were: (i) whether the CO had collected a huge amount from the three aspiring candidates as alleged in the Charge Sheet; (ii) whether the CO tried / gave bribe to Major Sanjay Kapoor to help the said candidates; (iii) under what circumstances FIR was not lodged to Civil Police on 12.11.1997 itself instead of 14.11.1997 (the date after so-called trapping). The competence of the Army Authorities as per the relevant rules to trap and keep a civilian in their custody in corruption cases was also a related issue; and (iv) whether the CO was involved in the Army Selection for monetary gains.
The conclusive findings in the Inquiry Report are extracted below in toto:
In the light of the foregoing discussions, it is considered that there is preponderance of probability to prove the charge framed vide Article I of the Charge Memo No.A/26981/CAO/DD-95 Memo dated 28 Oct 1999 that Shri Attar Singh, CO during the month of Nov 1997, while working as a Govt Servant in his capacity as Assistant in Air HQ committed grave misconduct by attempting to offer bribe to Maj Sanjay Kapoor of No.24 Services Selection Board at Bangalore by offering him an amount of Rs. 1 lakh for getting favours for selection of three Service candidates, who were to be interviewed by Services Selection Boards at Bangalore and that he was caught red-handed while offering the bribe, on the complaint of Maj Kapoor, and thus failed to maintain absolute integrity and acted in a manner unbecoming of a Govt Servant and thereby contravened the provisions of Rule 3 (1) (i) and 3 (1) (iii) CCS (Conduct) Rules, 1964, However, although it is very likely that Shri Attar Singh committed these acts for monetary considerations/gain for himself, conclusive evidence in this regard, as to who paid what amount to the CO and at what place and time have not been submitted by the Disciplinary Authority/PO.
5. Disciplinary Authoritys Order dated 31.08.2010 (Annex A/2): Against the IR, a detailed representation dated 17.4.2009 was submitted by the CO (Annex A/5). The main points as per the representation, noted and dealt individually with reasons by the DA were: (a) The charge of collecting huge amount had been disproved by the IO; (b) The Department held in abeyance the disciplinary proceedings for two years in view of the criminal proceedings being sub-judice in the court of law. All of a sudden the proceedings were started by a newly appointed IO; (c) & (d) The documents produced during the enquiry were not in original, but in photo-copies despite the requests; (e) Of the 4 DWs requested only 2 had been examined. The remaining two could not be examined because the IO was due to retire from service shortly; (f) Of the 6 defence documents requested only 5 were allowed by the IO; (g) The assistance of a legal expert was not allowed despite the involvement of legal aspects considering the parallel departmental as well as criminal proceedings on the same documents, witnesses and charges; (h) The statements of some State witnesses were recorded when the CO was not present due to his ailment; (i) Several irregularities had been committed by the IO as he was in a hurry to finalize the enquiry; (j) The CO had gone to Bangalore in connection with the treatment of his ailing wife. He was carrying a letter for Major Kapoor from a commonly known person with a request to help him in the treatment of his wife; (k) One main State witness Major General Lasrado, VSM had not appeared during the enquiry; (l) Despite the irregularities, the charge of collecting huge amount from the said candidates had not been proved during the enquiry; accordingly the related charge of his offering money to Major Kapoor also dies its own death.
After dealing with each of these points at length and not accepting the applicants contentions, the final view taken by the DA was as follows:-
AND WHEREAS, the undersigned after consideration of all the facts and circumstances of the case, evidence on record, Inquiry Report as well as the representation of the CO against the report of the inquiry, finds that the charge of attempting to offer bribe to Major Sanjay Kapoor of NO.24 Service Selection Board by offering him an amount of Rs. one lakh for getting official favours for selection of three service candidates who were to be interviewed by the Board at Bangalore stands proved. Further, in the light of the gamut of facts and circumstances and taking humanitarian view, particularly the fact of the CO having put in substantial service prior to his suspension, the penalty of compulsory retirement was imposed.
6. Appellate Authoritys Order dated 14.3.2011 (Annex A/3): Against the penalty order dated 31.8.2010, the statutory appeal dated 7.12.2010 was submitted by the CO to the President, the Appellate Authority in this case (Annex A/8). The main points raised in the appeal were again listed and dealt with in the AAs order individually and with reasons. The points raised were: (a) The implication by the CBI was in a false and fabricated criminal case. The appellant had faced two cases continuously for about 13 years for the same charge with the same documents and oral witnesses; (b) The last IO, Shri Panigrahi submitted his report after his retirement from service on 30.6.2008, despite having become defunct after retirement; (c) As per the IO conclusive evidence in respect of the payment of the amount to the CO had not been submitted by the prosecution; (d) In view of the failure of the prosecution to establish the charge, the accused was absolved from the responsibility of proving his innocence; (e) Grave procedural irregularities were alleged in the conduct of the enquiry; (f) There had been honourable acquittal of the charges in the criminal case; (g) In view of the acquittal by the Court of Law on merit and the charges regarding the payment of the alleged amount for bribe not being proved coupled with the failure in the observance of the prescribed procedures had resulted in failure of justice; (h) personal factors like three marriageable daughters, demise of his wife due to serious illness and weak financial position owing to 13 years of applicants suspension, besides unblemished service record had been pleaded praying for a sympathetic view.
On consideration of each of these points, the AA had not found it a fit case for interference in the order passed by the DA. With the following conclusive findings, the appeal was rejected:-
AND WHEREAS, the President, after considering all the facts and circumstances of the case and the submissions of the petitioner made in his appeal finds that the laid down procedure in the rules has been complied with in the case and the findings and decision of disciplinary authority are appropriate and do not warrant any interference.
7. Out of the several grounds raised in the OA, the applicants counsel would press three fold legal grounds:
The continuance of the disciplinary proceeding on the same set of charges, list of witnesses and documents as the criminal prosecution was in contravention of law. Reference to the Apex Courts judgment in Divisional Controller, Karnataka State Road Transport Corporation vs M.G. Vittal Rao {(2012) 1 SCC 442} would be made. Particularly para-17 of this judgment would be cited to contend that as per the law upheld in a catena of judgments simultaneous departmental and criminal proceedings cannot go on where the same set of facts and the evidence in both the proceedings is common. Also that where complicated questions of law and facts are involved, it is desirable to stay the departmental proceedings till conclusion of the criminal case.
The penalty order did not consider the judgment of the criminal court, despite the applicant having been acquitted vide the judgment dated 18.2.2010 brought to the notice of the DA vide his representation dated 15.3.2010 (Annex. A/8). In support of his argument, the learned counsel would advert to the view taken by the Full Bench of the Tribunal in its judgment dated 18.2.2011 in the OA 2816/2008 (Sukhdev Singh & Ors vs GNCTD). It would be argued that as held by the Full Bench such consideration was required before taking a final decision in a disciplinary proceeding. As per the learned counsel, Shri Chakravorti, the penalty order thus stood vitiated and was not in consonance with law.
The AAs Order had not been passed by the competent authority. Averment of the Joint Secretary of the Ministry of Defence passing both the orders of the DA as well as the AA would be made.
8. The aforesaid contentions have been rebutted by the respondents. The Counter Reply in Brief Facts of the case (Para-J, sub paras-c and d, makes the following averments:-
(c) There is no embargo on initiation of simultaneous disciplinary proceedings on the same set of charges on which a criminal proceeding is going on. It has been held by the Supreme Court in S.A. Venkatraman v. Union of India, AIR 1954, SC 375, that taking recourse to both, does not amount to double jeopardy. In the case of Capt. M. Paul Anthony v. Bharat Gold Mines, 1992 (2), the Supreme Court has held that both the proceedings can be held simultaneously. In Jang Bahadur Singh v. Bajnath Tewari, AIR 1969, Supreme Court has again held that the departmental proceedings should not be withheld pending criminal prosecution, unless there is a stay by a court.
(d) It has been held by Honble Supreme Court in the case of Ajit Kumar Nag v. G.M. Indian Oil Corp. Ltd., 2005 AIR SCW 4986. Para 11 that the two proceedings criminal and departmental are entirely different. Therefore, acquittal by a criminal court would not debar action under the departmental rules. In case of Corporation of Nagpur Vs. Ramchandra G. Modak, the Honble Supreme Court has held again that where the accused is not acquitted honorably and completely exonerated of the charges, departmental action can be taken even after acquittal. 8.1 The applicants contention of honourable acquittal in the criminal case by the trial court has been strongly rebutted by the respondents. The following submissions are made.
From the judgment dated 18 Feb 2010, it is clear that the applicant has not been acquitted honourably by the court of XXI Addl. City Civil and Session Judge and Special Judge for CBI cases, which is clear from the observations made in para 25 of the order dated 18 Feb 2010 that no foolproof procedure is followed in the matter of conduct of investigation to substantiate the charges of criminal conspiracy..and suffice it to say that prosecution has utterly failed to bring home the charge of the accused. 8.2 Shri S.M. Arif, the learned counsel for the Respondents would reiterate the stand taken in the counter reply. It would be submitted by Shri Arif that as per the law laid down by the Apex Court it was not necessary in all circumstances to keep disciplinary proceeding pending. Also the disciplinary authority was not bound by the criminal courts judgment. The learned counsel Shri Arif would argue that the penalty order was not vitiated inasmuch as the order passed by the appellate authority had taken into consideration the judgment of the criminal court. It would also be submitted that the as per the prescribed rules, the Presidential powers vested in the Minister of State for Defence, who had passed the orders as the Appellate Authority. The applicants contention of the concerned Joint Secretary passing the order at his level would be submitted to be utterly misconceived.
9. Taking into account the detailed enquiry report, orders passed by the DD and the AA as well as the legal grounds pressed by the applicants counsel, we confine ourselves to the consideration of only those grounds.
9.1 Continuance of disciplinary proceeding parallelly with the criminal proceeding:
9.1.1 The issue had been raised by the CO even when the enquiry was in process. In fact, on the COs representation inter alia on the ground of the criminal case, the then CO had on 5.5.2000 adjourned the departmental proceeding sine die. The enquiry report also reveals that the COs representation had been forwarded by the DA to the SP, CBI, Bangalore for his comments as to whether continuance of simultaneous departmental enquiry in the case would disclose his defence in the criminal case against him. Further, it is also recorded that an order had been passed by the DA in May, 2001 about the representation of the CO having been considered in consultation with the Legal Adviser, Defence and accordingly a conscious decision having been taken for proceeding with the departmental proceeding as well (Para 9/IR).
9.1.2 Shri H.P. Chakravorti, the learned counsel for the applicant has cited the decision of the Apex Court in Divisional Controller, Karnataka State Road Transport Corpn (supra) case. This was a case in which there were allegations of cash theft against the respondent in collusion with four other employees by cutting padlock of Cash Room of the appellant-employer. After a departmental enquiry, the charges had been proved and dismissal order passed. However, the respondent had been acquitted of offences under Section 457 and 381 read with Section 34 IPC in Criminal Revision. At the level of the Labour Court, the dismissal order had been upheld. Dealing with the effect of acquittal in criminal proceeding, the Ld. Single Judge of High Court had modified the order of dismissal of delinquent employee to the order of termination and grant of terminal benefits. The Division Bench had further held about the respondent being entitled to reinstatement in service with all consequential benefits. Keeping in view his retirement, his entitlement to 50% of the back wages from the date of dismissal till the date of retirement along with consequential benefits of retirement was ruled. On consideration of the matter, the Honble Apex Court had limited the relief only as granted by the Ld. Single Judge, which had not been challenged by the appellants.
As the propositions of law, the following were propounded in this case: (i) Question of considering reinstatement after decision of acquittal or discharge by a competent criminal court arises only if the dismissal from service was based on conviction by criminal court in view of the provisions of Article 311 (2) second proviso (a) of Constitution or analogous provisions in statutory rules applicable in a case. (ii) In a case where enquiry is independent of criminal proceeding, acquittal in a criminal court is of no help. Even if a person stands acquitted in a criminal court, domestic enquiry can be held, since standard of proof required in a domestic enquiry and that in a criminal case are different. (iii) Facts, charges and nature of evidence etc. involved in an individual case would determine as to whether decision of acquittal would have any bearing on the findings recorded in the domestic enquiry since as per the facts of the present case, the delinquent had been found guilty of all charges and there was due adherence to natural justice while conducting domestic enquiry, punishment of dismissal was proportionate to delinquency.
Para 17 of this judgment relied upon by the applicants learned counsel is reproduced below in toto:
17. In Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. this Court held that there can be no bar for continuing both the proceedings simultaneously. The Court placed reliance upon a large number of its earlier judgments including Delhi Cloth and General Mills Ltd. v. Kushal Bhan, Tara Oil Mills Co. Ltd. vs. Workmen, Jang Bahadur Singh v. Baij Nath Tiwari, Kusheshwar Dubey v. Bharat Coking Coal Ltd., Nelson Motis and B.K. Meena, and held that proceedings in a criminal case and departmental proceedings can go on simultaneously except where both the proceedings are based on the same set of facts and the evidence in both the proceedings is common. In departmental proceedings, factors prevailing in the mind of the disciplinary authority may be many, such as enforcement of discipline or to investigate the level of integrity of the delinquent or the other staff. The standard of proof required in those proceedings is also different from that required in a criminal case. While in departmental proceedings, the standard of proof is one of preponderance of probabilities, in a criminal case, the charge has to be proved by the prosecution beyond reasonable doubt. Where the charge against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it is desirable to stay the departmental proceedings till conclusion of the criminal case. In case the criminal case does not proceed expeditiously, the departmental proceedings cannot be kept in abeyance for ever and may be resumed and proceeded with so as to conclude the same at an early date. The purpose is that if the employee is found not guilty his cause may be vindicated, and in case he is found guilty, the administration may get rid of him at the earliest. (emphasis supplied) Evidently, the learned counsel is arguing by picking up bits and patches, instead of reading the judgment in its entirety and being guided by the ratio decidendi.
9.1.3 In the Order of a Coordinate Bench of CAT (PB) dated 10.1.2009 in OA No.1477/2007 (Virendra Singh vs UOI) had summarized the important milestones on the point of development of law:
In Delhi Cloth & General Mills Ltd vs Kushra Bana Ltd, AIR 1060 SC 806 as well as in Tata Oil Mill vs Workmen, AIR 1965 SC 155 there was commencement of law relating to prejudice. While holding that principles of natural justice did not require keeping departmental proceedings in abeyance till the conclusion of the criminal case. The salient feature of directions issued was that one should not be prejudiced by disclosure of defence in the departmental proceeding, which is sought to be taken in the criminal trial and proceeded later.
Oil and Natural Gas Commission vs U.K. Basu, 1992 (4) SCC 711 showed a change in the trend. It was held that the aforesaid principle is not a straight jacket formula and each case has to be examined on merit.
In State of Rajasthan vs B.K. Meena, JT 1996 (8) SC 684 the Honble Apex Court had observed that the ground of not causing prejudice to the defence of the delinquent employee in criminal proceedings was needed by the charges being grave and involving complicated questions of law and fact. Further it was reiterated that there is no legal bar to proceed simultaneously. Besides there is a balancing of the right of the charged employee against the interest of the Govt. which also needs to be safeguarded. It was further stressed that since the criminal cases ordinarily get delayed, a consequent undue delay in conduct and conclusion of departmental proceeding would neither be in the interest of good administration nor of the employee.
Captain M. Paul Anthony vs Bharat Gold Mines Ltd & Anr, JT 1992 (2) SC 456 : An additional aspect i.e. acquittal on merit on the same charges absolving a Govt. servant to be put to record of the departmental proceeding on the same set of charges. It was further emphasized that if he is not guilty of the charges, his honour should be vindicated at the earliest possible moment and if he is guilty, he should be dealt with promptly according to law.
Para 22 : The conclusions which are deducible from various decisions of the Court referred to above are Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar.
If both are based on identical and similar sets of facts and the charge in the criminal case is of a grave nature involving complicated questions of law and facts, it would be desirable to stay the departmental proceedings till the conclusion of the case.
The aspect regarding charge being grave and involving complicated questions will depend upon the nature of offence, nature of the case launched on the basis of evidence and material collected during investigation or as reflected in the charge-sheet.
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 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 can be resumed so as to be concluded at an early date. Thus, if the employee is not found guilty, his honour may be vindicated and in case he is found guilty, administration may get rid of him at the earliest.
9.1.4 To this we may also add the cases cited by the respondents in their counter affidavit:
i) Kendriya Vidyalaya Sanghathan vs T Sri Niwas {2004 (6) SCALE 467}
ii) Noida Entrepreneurs Association vs Noida {JT 2007 (2) SC 620}
iii) S.A. Venkatraman v Union of India, AIR 1954 SC 375
iv) Jang Bahadur Singh v Bajnath Tewari, AIR 1969 SC
v) Ajit Kumar Nag v G.M., Indian Oil Corpn. Ltd {2005 AIR SCW 4986} 9.1.5 Delhi High Court decision dated 8.4.2004 in WP(C) No.4926/03 (Tarlok Singh Vs. MCD) and WP (C) No.4923/2003 (Om Prakash Vs. MCD) while recounting the development of law on the subject, the Honble High Court dwelt upon the distinct and mutually exclusive jurisdictional areas of criminal and departmental proceedings. Whereas in a departmental proceeding the area of investigation covered the fields of (a) enforcement of discipline (b) level of integrity and (c) misconduct pertaining devotion to duty; in a criminal proceeding investigation covered culpability from the point of view of criminal law. Further the clear view taken was that where the charges simply related to demanding and receiving illegal gratification that could not be construed as involving complicated questions of fact and law.
9.1.6 In the light the multi-dimensional law as propounded by the Apex Court and High Courts in a catena of judgments, the objections of the learned counsel for the applicant to the continuance of the departmental proceeding during the pendency of the criminal proceeding cannot be accepted in isolation of the related facts and relevant aspects of law.
9.2 Consideration of the criminal courts judgment: As stated above, the DAs order had dealt with at length the detailed representation dated 17.4.2009 made by the CO against the enquiry report. The subsequent representation dated 15.3.2010 (Annex A/8) mentioning about the acquittal was on the subject or reinstatement of the applicant. The contention of the applicants learned counsel about a prejudice having been caused to the CO by non-consideration of the trial courts order by the DA would have carried some force, had the same also escaped the attention of the AA. However, this is not the case here. Paras f & g of the submissions by the CO on this subject and their consideration by the AA are extracted below:
(f) The most important point according to the petitioner is that the additional Sessions Judge, Bangalore has Honourably acquitted him of the charges. Although, ample time was given to CBI to file an appeal in the High Court against the decision, perhaps CBI preferred not to file an appeal only because they were well aware that the charges and all other connected documents were fabricated and not sustainable in the higher Court. As a matter of fact, CBI was not prepared to accept the case from the very beginning but was compelled to register it due to pressure of some higher Army authorities.
(g) When the Court of Law has acquitted him of the charges on merit of the case, why has his livelihood been snatched by the department, despite the fact that the same charges have been disproved by the learned inquiry officer on the reason that, conclusive evidence in this regard, as to who paid, what amount to the CO and at what place and time, have not been submitted by the Disciplinary Authority/Presenting Officer and also discarded by the Court of Law which has remarked that Prosecution has failed to bring home the charges. A copy of the Court judgment was sent to the Disciplinary Authority on 15 March 2010 by him and the department also obtained the same from the Govt. Counsel/CBI Bangalore. However, the procedure laid down the CCS (CC&A) Rules, 1965, was not complied with, resulting in failure of justice. The consideration by the AA to the above submissions was as follows:-
(f) The acquittal of the petitioner was for lack of evidence and procedural infirmities on the part of the prosecution. No comments can be offered on why the CBI authorities decided not to go in appeal against the order, as this department was not party to the decision. However, the contention of the petitioner in this regard is definitely presumptuous and its goes totally unsubstantiated.
(g) A plain reading of the Court judgment makes it clear that Shri Attar Singh was acquitted in the criminal case not on merit but because no fool proof procedure was followed in the matter of conduct of investigation to substantiate the charges. Further, it has been held in various Court cases that acquittal in a Court case will not debar action under departmental rules. Moreover, the quantum of proof required in a disciplinary case is that of a preponderance of probability and not proof beyond reasonable doubt, which is the required standard for criminal cases. In the instant case the disciplinary proceedings were held concurrently with the Court case and all the laid down procedures was followed in the matter. Prosecution witnesses and two Defence witnesses were examined and cross-examined in the inquiry. The IO after analyzing all the documents adduced before the inquiry has submitted his report in which he has held the charge as proved on the basis of preponderance of probability which is the standard of proof required for disciplinary proceedings. The Inquiry report, after acceptance by the disciplinary authority was forwarded to the CO for representation and on receipt of the same, the case was submitted to the disciplinary authority for imposing of suitable penalty, who imposed the penalty after considering the case in its entirety. 9.2.1 Since the applicants learned counsel has set great store in his arguments on the decision of the Full Bench of the Tribunal, it would also be apt to mention here the context of that order. This had dealt with the impact of rules 11, 12 and 15 of the Delhi Police (Punishment & Appeal) Rules, 1980. Rule 11 prescribes various options for departmental action by the Disciplinary Authority in cases where a subordinate rank employee is punished on judicial conviction. Rule 12 forbids departmental punishment in cases of acquittal by a criminal court, subject of course to certain stipulated conditions. Rule 15 dealing with preliminary enquiries inter alia contains a provision for a decision at a sufficiently high level like the Additional Commissioner of Police as to whether in cases where preliminary enquiry discloses commission of a cognizable offence, whether a criminal case should be registered or a departmental enquiry held.
The following issues for reference had been framed by the Full Bench:-
Whether in view of the provisions contained in rule 12 of the Delhi Police (Punishment and Appeal) Rules, 1980, which specifically stipulates that a police officer shall be proceeded against in a departmental enquiry only in the circumstances mentioned in clauses (a) to (c) of the said rule, would it be permissible to have simultaneous departmental enquiry along with criminal trial; and Whether in view of the provisions contained in rule 12, departmental proceedings could go on but final orders should await the decision of the criminal court. The final view taken was as below:
9. In view of the discussion made above, we hold that there is no bar, express of implied, in the Rules of 1980 for holding simultaneous criminal and departmental proceedings. However, in case departmental proceedings may culminate into an order of punishment earlier in point of time than that of the verdict in criminal case, and the acquittal is such that departmental proceedings cannot be held for the reasons as mentioned in rule 12, the order of punishment shall be revisited. The judicial verdict would have precedence over decision in departmental proceedings and the subordinate rank would be restored to his status with consequential reliefs.
10. In view of our findings on the first issue, there would be no need to put on hold the final orders in departmental proceedings awaiting the decision of the criminal court. Thus, the argument of the applicants learned counsel citing the Full Benchs decision in support of his arguments suffers from the same infirmity of not reading the judgment in entirety, besides the same being in the context of the special rules for the Delhi Police.
The learned counsel in fact is referring to the observations cited in this judgment from the Apex Courts decision in G.M. Tank vs State of Gujarat & Ors {(2006) 5 SCC 446} as quoted in Ground 5.15 of the instant OA these are extracted below:
31. In our opinion, such facts and evidence in the department as well as criminal proceedings were the same without there being any iota of difference, the appellant should succeed. The decision which is usually proved between the departmental and criminal proceedings on the basis of the approach and burden of proof would not be applicable in the instant case. Though finding recorded in the domestic enquiry was found to be valid by the Courts below, when there was an honourable acquittal of the employee during the pendency of the proceedings challenging the dismissal, the same requires to be taken note of and the decision in Paul Anthonys case (supra) will apply. We, therefore, hold that the appeal filed by the appellant deserves to be allowed. In any case, as has been elaborated above, the development of law on the subject is multi-dimensional and while applying any particular proposition of law the facts of the case assume importance. While the contention of the acquittal of the CO in the present case has been rebutted by the respondents; even accepting such a contention as per the applicants claim, at the most this would only justify a consideration by the administrative authorities rather than an obligation for replicating the criminal acquittal by departmental exoneration. Even after consideration of the trial courts judgment, the Appellant Authority has not found it an apt case to interfere with the penalty of compulsory retirement.
9.3 Competency of the authority passing the AAs Order: This legal ground also is not found to be tenable. A plain reading of the Order dated 14.3.2011 makes this clear. This inter alia mentions that in the first instance the CO had submitted an appeal dated 1.10.2010 against the DAs order addressed to the Defence Secretary. However, as the Appellant Authority in his case is the President of India, this appeal was returned to the CO intimating to him the correct rule position. Accordingly, another appeal dated 7.12.2010 addressed to the Honble President of India was submitted. It is this statutory appeal which has been considered in detail in the AAs Order. The concluding para clearly states about the President passing the Order after considering the facts and circumstances of the case and the submissions of the petitioner made in his appeal.
Even the communication of this Order under the signature of the Joint Secretary is with the express provision By order and in the name of the President.
10. To conclude, we have gone through the material on record very carefully and found the enquiry report, the orders passed by the Disciplinary Authority and the Appellate Authority as extremely detailed and reasoned orders, following the prescribed procedures, and meticulously considering the submissions made by the CO at every stage. As was observed by the Honble Apex Court in B.C. Chaturvedi vs Union of India & Ors (AIR 1996 SC 484):
Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Further, the power of judicial review is to ensure that the individual receives fair treatment.
We find the present case fulfilling the above touchstone laid down by the Honble Apex Court. As regards the legal grounds raised by the applicants learned counsel to question the validity of the impugned orders; after an extensive and critical scrutiny, these also have not been found to be tenable. The charge in question is extremely grave and the penalty of compulsory retirement, which does not carry the stigma of dismissal nor does it deprive the concerned employee of the retiral dues; is mellowed by humane considerations. Resultantly, finding no justification for judicial intervention in what is legitimately within the domain of the respondents, the OA is dismissed. No orders as to costs.
(Dr. Veena Chhotray) (G. George Paracken)
Member (A) Member (J)
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