Central Administrative Tribunal - Delhi
Mithun Kumar vs Comm. Of Police on 3 August, 2021
1
OA 9/2015
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A./100/9/2015
Order reserved on: 23.07.2021
Order pronounced on:
Hon'ble Mr. R.N. Singh, Member (J)
Hon'ble Ms. Aradhana Johri, Member (A)
Co. Mithun Kumar, Age 24 years
No.590/DAP, (PIS No.2810774)
S/o Late Shri Ashok Kumar,
R/o H.No.368, MCD Flats, Avantika,
Sector-4, Rohini, Delhi-85 ... Applicant
(Through Shri Sachin Chauhan, Advocate)
Versus
1. Govt. of NCTD through
The Commissioner of Police,
Police Headquarters, I.P. Estate,
M.S.O. Building, New Delhi
2. Addl. Commissioner of Police,
Armed Police, Delhi through
The Commissioner of Police,
Police Headquarters,
I.P. Estate, M.S.O. Building,
New Delhi
3. Dy. Commissioner of Police,
1st BN, DAP Delhi through
The Commissioner of Police,
Police Headquarters,
I.P. Estate, M.S.O. Building,
New Delhi
4. Dy. Commissioner of Police,
Vigilance : Delhi through
The Commissioner of Police,
Police Headquarters,
I.P. Estate, M.S.O. Building,
New Delhi ... Respondents
(Through Ms. Harvinder Oberoi, Advocate)
2
OA 9/2015
ORDER
Hon'ble Mr. R.N. Singh, Member (J) The present OA has been filed by the applicant under Section 19 of the Administrative Tribunals Act 1985 to challenge order dated 10.07.2013 (Annexure A-1) whereby the departmental inquiry was initiated against the applicant, order dated 19.05.2014 (Annexure A-2) whereby the Disciplinary Authority (DA) has imposed the punishment of forfeiture of two years approved service permanently entailing proportionate reduction in his pay, order dated 1.09.2014 (Annexure A-3) whereby the statutory appeal of the applicant has been rejected, findings of the Inquiry Officer (IO) dated 1.01.2014 (Annexure A-4) and order dated 16.05.2013 (Annexure A-4A) vide which the applicant's name has been kept in secret list of doubtful integrity with effect from 27.02.2013 for a period of three years. The applicant has prayed for the following reliefs:
"8.1 To quash and set aside the impugned order dated 10.07.2013 passed by Disciplinary Authority at A-1 order dated 19.05.2014 passed by Disciplinary Authority imposing the major punishment and order dated 01.09.2014 passed by the appellate authority whereby the appeal is rejected but the punishment is reduced and to further direct the respondents to restore the forfeited years of service along with pay allowances with all consequential benefits including seniority and promotion and pay allowances.
8.2 To quash and set aside the findings of the Enquiry Officer.3 OA 9/2015
8.3 To set aside the order dated 16.05.2013 whereby the name of the applicant has been kept in secret case on doubtful integrity with effect from 27.02.2013 for a period of 3 years and to further direct the respondents to remove of the name of the applicant from secret list of doubtful integrity from the date of inception."
2. The facts relevant for deciding the instant OA are that the applicant was appointed as a Constable in Delhi Police on 8.06.2010. A departmental inquiry was initiated against the applicant vide order dated 10.07.2013. An IO was appointed and the summary of allegation, as evident from the findings dated 1.01.2014 of the IO (Annexure A-4), is as under:
"It is alleged against Ct. Mithun Kumar No.590/DAP (PIS No.28107744) that on 26.2.2013 a D.D. No.94-B was lodged at P.S. Sultanpuri regarding handing over one Smt. Parveen @ Dolly w/o Late Sh. Kamal R/o H.No. E-Block, Near Chetan Multi Gym. Sultanpuri, Delhi Permanent address Village-Kheeragaon, Kabristan Road, Distt-Hazan Bagh, Jharkhand by S.I. G.F. Tanwar of P.S. Vijay Vihar. This DD Entry was marked to W/S-I Rakhi for enquiry and report. Enquiry Officer recorded the statement of Smt. Gajala Parveen W/o Kamal R/o above aged 26 years stating therein that she is residing at above address alongwith her daughter Ashiki aged 5 years and also stated that her husband has expired and she is doing a private job. She further stated that she came in contact with him since last 4-5 months. He came to her house at Village, PO & P.S Koilwar, Dist-Bhojpur, Jharkhand and forcefully did physical relations with her. When she started crying he took her at nearest Mandir and put Sindoor on her forehead and told her solemnizing marriage with her and then came to Delhi and started living together in a rented house. She further added that thereafter he started beating and did physical relation forcefully there. Subsequently a case FIRNo.158/13 dt. 27.2.13 u/s 376 IPC P.S. Sultanpuri, Delhi was registered against him and investigation was taken up by W/S-1, Rakhi.
He was arrested on 27.2.2013 and was medically examined and exhibits given by doctor were deposited in F.S.L. Rohini. He was granted bail. The charge sheet in above case had been filed in court.4 OA 9/2015
The above act on the part of Ct. Mithun Kumar No.590/DAP amounts to gross misconduct, depravity, moral turpitude, lack of integrity and an act unbecoming of a police officer which renders him liable to be dealt departmentally under the provisions of Delhi Police (P&A) Rules, 1980."
3. The IO vide his findings dated 1.01.2014, after considering the evidence on record, has recorded in the last two paragraphs of the said report, as under:
"The defence statement submitted by delinquent Ct. Mithun Kumar carries weight. Applicant has enclosed a copy of statement of Smt. Gajala Parveen (P.W.1) recorded u/s 164 Cr.PC in which she had removed all the doubts by saying that Mithun Kumar had not done anything wrong with her and she does not want any action against him. She even had visited Rohini Jail and done mulakat to delinquent C. Mithun Kumar.
CONCLUSION On the basis of examination of PWs, documents exhibits, defence statement, annexed documents with defence statement I, Inspector Dalip Kumar E.O. have come to the conclusion that the charge framed and served upon delinquent Ct. Mithun Kumar No.590/D.A.P. is proved to the extent that case F.I.R. No. 158/13 dated 27.02.2013 u/s 376 I.P.C., P.S. Sultanpuri, Delhi was got registered against him and he was arrested and charge-sheeted in the above case which is pending in the court."
4. The DA, agreeing with the findings of the IO, served a copy of the said findings dated 1.01.2014 upon the applicant for submission of his written representation/reply within 15 days. The applicant submitted the same and the DA passed the aforesaid order of penalty dated 19.05.2014 (Annexure A-2). The applicant, in view of the statutory provision and liberty accorded in the impugned disciplinary order, submitted his appeal and the Appellate Authority (AA) vide 5 OA 9/2015 its order dated 1.09.2014 (Annexure A-3), reduced the punishment of forfeiture of two years approved service permanently to that of forfeiture of two years approved service temporarily. The suspension period from 27.02.2013 to 7.11.2013 has been decided as period not spent on duty by the DA as well as the AA for all intents and purposes. Vide impugned order dated 16.05.2013, the name of the applicant has been brought on secret list of doubtful integrity with effect from 27.02.2013 i.e. from the date of arrest for a period of three years on the allegations as indicated in the suspension order.
5. Learned counsel for the applicant submits that the applicant has been implicated in the aforesaid case/FIR without any basis and for ulterior reasons. He submits that the prosecutrix deposition under Section 164 Cr.PC clearly reflects about the innocence of the applicant and the circumstances under which signature of the applicant was taken by the police authorities on paper/complain resulting into lodging of the aforesaid FIR and his subsequent arrest. The statement of the prosecutrix dated 27.02.2013 under Section 164 Cr.PC reads as under:
"On S.A I belong to Jharkhand and before 2-3 months Me and My daughter was come to Delhi. I know Mithun for past many years because he is belong to my village and He live in Delhi and also service in Delhi Police. He keeps on coming to my home for my help. About 3-4 days ago he come to my home and our arguments is started after this he ran out from my home and I call to his cellphone but his cellphone has been 6 OA 9/2015 switched off. I am tensed and immediately call to police. He did not do anything wrong with me. The complaint was written because of a misunderstanding. I do not want to take any action against him. I am giving this statement voluntarily.
RO & AC (Dheeraj Mor) MM/Delhi/27.02.2013"
6. He further submits that before the IO, the complainant/prosecutrix appeared and reiterated the innocence of the applicant. He also submits that her previous statement which has been read over to her is totally wrong and that she has never made any such statement. On being cross-examined, she has stated that her statement dated 27.02.2013 is though signed by her but she has not told about the contents of the said statement and that she is illiterate and knows only to sign.
7. Learned counsel for the applicant submits that PW-2, PW-3 and PW-4, all are the police officials dealing with the registration of FIR and not the eye witnesses of the alleged offence/delinquency committed by the applicant. He further invites our attention to the concluding paragraph of the IO's report wherein the IO has given a finding that the defence statement submitted by the applicant carries weight. He submits that once the IO has given such a categorical finding, finding of the IO that the charge framed and served upon the delinquent is proved to the extent that case/FIR No.158/2013 dated 27.02.2013 was got registered against 7 OA 9/2015 the applicant and he was arrested and the charge sheet in the said case was pending becomes irrelevant in as much as the same cannot be construed as misconduct. However, the DA has mechanically imposed the penalty vide impugned order on extraneous grounds, without appreciating the fact that mere registration of FIR, arrest or filing of the charge sheet cannot be construed as a misconduct. He contends that unless the alleged offences are proved in the criminal case or the alleged delinquency is proved in the departmental inquiry, one deserves to be treated as innocent. He further submits that the statutory appeal preferred by the applicant has though resulted into reduction in penalty, however, the AA despite referring to the grounds of appeal has not appreciated the same and has passed the impugned appellate order mechanically.
8. Shri Sachin Chauhan, learned counsel for the applicant further contends that the applicant stands acquitted by the Ld. Trial Court which clearly reflects that the applicant, though implicated in the aforesaid case/FIR, has been innocent. He argues that the DA as well as the AA have ignored the deposition of the prosecutrix before the Ld. MM under Section 164 Cr.PC and her deposition before the IO also in which the prosecutrix has categorically stated that the applicant is innocent. Further, the complaint dated 27.02.2013 resulting into lodging of FIR and subsequently his arrest was on account of the fact that the prosecutrix 8 OA 9/2015 was made to sign some papers which she could not understand being illiterate. The learned counsel argues that once the applicant has been proceeded simultaneously in departmental proceedings as well, it was incumbent upon the DA as well as the AA to give weightage to the statement made by the prosecutrix/complainant before the IO and not to the statement got signed by her without telling the contents thereof. He argues that previous statement of the witness cannot be taken into account to prove guilt or charges in view of the law laid down by the Hon'ble Apex Court in Kuldeep Singh Vs Commissioner of Police & Ors. reported in 1999 (2) SCC 10, which has been followed by this Tribunal in order/judgment dated 25.02.2010 in OA 1064/2008 titled Ct. Krishan Kumar Vs GNCTD & Ors. and further in order/judgment dated 19.05.2016 in 0A 3620/2013 titled Head Constable Ram Dayal & Anr. Vs GNCTD & Ors. and order/judgment of the Hon'ble High Court of Delhi dated 20.01.2010 in WP (C) No. 3591/2001, Jai Bhagwan Vs Commissioner of Police & Ors..
9. Learned counsel for the applicant further argues that once the applicant has been acquitted in the aforesaid case/FIR by the Ld. Trial Court, in view of the provisions of Rule 12 of Delhi Police (Punishment and Appeal) Rules, the respondents are mandated to revisit the order of penalty and in support of his such argument, he places reliance on order/judgment dated 18.02.2011 of the Full Bench of this 9 OA 9/2015 Tribunal in OA No. 2816/2008 titled Sukhdev Singh & Anr. Vs. Govt. of NCT of Delhi. He further places reliance on order/judgment dated 16.11.2018 of this Tribunal in OA 4054/2013 titled Constable Om Pal Vs GNCTD & Ors., order/judgment dated 22.08.2007 in the case of HC Jag Saran Vs Govt of NCT of Delhi, order/ judgment dated 5.05.2016 in OA No. 2493/2014 titled Constable Acheta Nand Vs Govt of NCT & Ors. and also on order/judgment dated 3.09.2019 in OA No. 3288/2014 titled Rajesh Kumar Vs Govt. of NCT of Delhi & Ors.
10. Pursuant to notice, the respondents have filed a reply opposing the OA and have prayed for dismissal of the OA.
11. Ms. Harvinder Oberoi, learned counsel for the respondents has vehemently opposed the claim of the applicant. The respondents have not denied the basic facts of the case as recorded hereinabove. With the assistance of reply filed on behalf of the respondents, she contends that the applicant involved himself in the aforesaid case/FIR under Section 376 IPC, was arrested and charge sheeted and the IO has supported the prosecution in departmental inquiry. She further submits that the PW-3 supported the prosecution for registration of FIR against the applicant before the Ld. Trial Court and such act of moral turpitude cannot be ignored by the respondents. She also argues that there is no illegality in continuing parallel proceedings in as 10 OA 9/2015 much as the criminal charge and the departmental proceedings are distinct and different.
12. We have heard the learned counsels for the parties and have also perused the pleadings on record.
13. In view of the aforesaid, the undisputed fact remains that on the basis of a complaint, the aforesaid FIR was registered against the applicant under Section 376 IPC. The applicant was arrested and he was granted bail by the Sessions Court after the police filed challan against the applicant before the Ld. Trial Court. When the prosecutrix/complainant was examined under Section 164 Cr.PC, in her deposition, she has not only stated about the innocence of the applicant but has also said that her signature was obtained on some paper and she being illiterate and only able to sign, could not understand the contents thereof. In the departmental inquiry, the IO has given a categorical finding that the defence statement of the applicant carries weight and the allegations only qua registration of FIR, the applicant being arrested and charge sheeted before the Ld. Trial Court stands proved. The DA has not issued any disagreement note and has rather accepted the finding of the IO. The applicant stands acquitted by the Ld. Trial Court in the said case/FIR. The other prosecution witnesses in the case have not been the eye witnesses nor have they proved allegations made against 11 OA 9/2015 the applicant except registration of FIR, arrest etc. In spite of such admitted facts and circumstances of the case, the DA has inflicted the penalty which, of course, has been reduced by the AA vide appellate order.
14. These circumstances clearly indicate that the impugned orders have been passed not on the basis of proved delinquency in as much as mere registration of FIR, being arrested, cannot be considered as a finding of the misconduct unless the allegations leveled in the FIR or in the charge memo are proved before the Ld. Trial Court or in the departmental proceedings. Reliance on previous statement of the witnesses cannot be taken into account for proving the guilt of the charge officer in view of the law laid down by the Hon'ble Apex Court in Kuldeep Singh (supra) wherein their Lordships have clearly ruled that the IO was not right in bringing on record the so called previous statement of the witnesses. The judgment of the Hon'ble Apex Court in Kuldeep Singh (supra) has been followed by this Tribunal in the case of Constable Krishan Kumar (supra) and HC Ram Dayal (supra) and also by the Hon'ble High Court of Delhi in Jai Bhagwan (supra). The Full Bench of this Tribunal has considered the provisions of Rule 12 of Delhi Police (Punishment & Appeal) Rules and para 9 of the order/judgment titled Sukhdev Singh reads as under:-
"9. In view of the discussion made above, we hold that there is no bar, express of implied, in the Rules of 1980 for 12 OA 9/2015 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 re-visited. The judicial verdict would have precedence over decision in departmental proceedings and the subordinate rank would be restored to his status with consequential reliefs."
15. Similar view has been taken by the Division Bench of this Tribunal in various orders/judgments including in the case of Constable Om Pal (supra), Head Constable Jag Saran (supra), Constable Acheta Nand (supra) and Rajesh Kumar (supra).
16. In view of the judgment of Full Bench of this Tribunal in Sukhdev Singh (supra), ordinarily we could have remitted the matter to the respondents to revisit the impugned penalty order. However, keeping in view the fact that the IO has given a categorical finding in its order dated 1.01.2004 to the effect that the statement of the applicant carries weight and charges only to the extent of registration of FIR, his being arrested and charge sheet being filed in the Ld. Trial Court in the said case/FIR are proved, and the DA has agreed with such inquiry report, we are of the considered view that during inquiry, no misconduct has been proved. Further, the applicant is stated to have been acquitted in the said case/FIR. In these circumstances, we are of the considered view that no useful purpose will be served by 13 OA 9/2015 remitting the matter to the respondents for further consideration.
17. In view of the aforesaid facts and circumstances and settled position of law, we are of the considered opinion that the OA deserves to be partly allowed and the same is accordingly partly allowed. The impugned order dated 19.05.2014 passed by the DA, order dated 1.09.2014 passed by the AA and the order dated 16.05.2013 are quashed and set aside. It is further ordered that the applicant shall be entitled to the consequential benefits in accordance with the relevant rules and instructions on the subject. The respondents are directed to pass appropriate orders in this regard as expeditiously as possible and in any case within eight weeks of receipt of a copy of this order. However, in the facts and circumstances, there shall be no order as to costs.
(Aradhana Johri) (R.N. Singh) Member (A) Member (J) /dkm/