Central Administrative Tribunal - Delhi
Bikram Singh vs Commissioner Of Police on 17 March, 2011
Central Administrative Tribunal Principal Bench O.A.No.3208/2010 New Delhi, this the 17th day of March, 2011 Honble Shri Shailendra Pandey, Member (A) Honble Dr. Dharam Paul Sharma, Member (J) Bikram Singh s/o Shri Chand r/o B2 Police Station Adarsh Nagar Delhi 33. . Applicant (By Advocate: Sh. Ajesh Luthra) Versus Commissioner of Police PHQ, M.S.O.Building IP Estate New Delhi. Deputy Commissioner of Police VIIth Bn./DAP P.T.S. Malviya Nagar New Delhi. The Enquiry Officer D.E.Cell Police Bhawan Asaf Ali Road New Delhi. Respondents (By Advocate: Mrs. Sumedha Sharma) O R D E R By Shailendra Pandey, Member (A):
This OA has been filed challenging the order dated 1/2.09.2010 whereby a departmental inquiry, which was kept in abeyance vide order dated 31.08.2009, has been reopened in compliance of the revised Standing Order No.125/2008 with the prior approval of the Special Commissioner of Police, Delhi.
2. The brief facts of the case are that on 18.05.2006 a regular departmental inquiry had been initiated against the applicant, an ASI in the Delhi Police, on the allegation that he had demanded Rs.20000/- and accepted Rs.4000/- for favouring the accused of a criminal case under section 420 IPC. The applicant had been caught red handed while accepting Rs.4000/- as illegal gratification and the bribe money had been recovered from him, and FIR No.46/2005 dated 21.10.2005 had been registered against him under section 7/13 POC Act Anti Corruption Branch, Delhi (Prior to the said DE). Later on, the DE was kept in abeyance by DCP/NWD vide order dated 31.08.2009 till the finalization of the above criminal case against the applicant. The respondents reopened the departmental proceedings against the applicant vide order dated 2.9.2010, leading to filing of the present OA, in which the following reliefs are sought:
(a) quash and set aside the impugned order at Annexure A/1 with all consequential benefits.
(b) quash and set aside SO 125/2008 to the limited extent as submitted in the OA.
3. It is the case of the applicant that the respondents themselves had taken a conscious decision in 2009 (when SO No.125 was in existence) to keep the departmental inquiry in abeyance till the outcome of the criminal case, and the sudden passing of the impugned order is highly unjustified as there is no change in circumstances, and that the successor disciplinary authority cannot be allowed to arbitrarily overturn the decision of his predecessor. It is also stated, that the proceedings in the criminal case are at an advanced stage as evidences have been recorded and the case has now been fixed for arguments and, therefore, the respondents should have waited for the outcome of the case.
4. It is further stated in Para 5 (J) that in OA No.2816/2008, this Tribunal has referred the issue of conflict of Standing Order No.125/2008 with the statutory rules to a Larger Bench, therefore, till such time the issue is decided, allowing re-opening of the inquiry would amount to gross miscarriage of justice.
5. It has now been brought to our notice that the decision of the Full Bench in Sukhdev Singh & Anr. v. Government of NCT of Delhi & Others, OA No.2816/2008 had been pronounced on 18.02.2011.
The learned counsel for the applicant stated during arguments that the decision in the said Larger Bench is not applicable in the facts and circumstances of the present case as here it is not a question of initiating a departmental inquiry pending finalization of the criminal case, but of an unjustified re-opening of the DE proceedings, which the respondents themselves had been kept in abeyance till the finalization of the criminal proceedings. He has also relied on orders of this Tribunal in OA No.2816/2009 and OA No.2927/2010 in support of the reliefs claimed.
6. The respondents have opposed the above submissions and have stated that the action of the respondents is absolutely legal, justified and as per the statutory rules. The revised SO 125/08 clearly mention about its applicability in all cases where police officers are facing criminal proceedings especially under POC Act or cases where moral turpitude is involved, DE proceedings can also be initiated simultaneously and should not be kept in abeyance due to pendency of such criminal proceedings. Moreover, in Kendriya Vidhyala Sanghthan & Ors. vs. T. Srinivas (AIR 2004 SC 4127), the Honble Apex Court has held that there should be no stay of parallel departmental enquiry because of the consideration of seriousness of charges which pertains to acceptance of illegal gratification and the desirability of retaining the employee in service in spite of such serious charges leveled against him even though criminal trial is pending on the same misconduct. In the instant case, the applicant was involved in a serious offence of corruption and the case has been dealt with strictly as per the guidelines of the said SO No.125/08 and in the light of Judgement of the Apex Court. It is also stated that the departmental proceedings reopened against the applicant on account of misconduct which was unbecoming of a police officer, has nothing to do with the merits of the criminal case. Hence, the decision of the disciplinary authority to reopen the departmental inquiry already initiated against the applicant is justified. Further, the Honble Apex Court in case of Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. (AIR 1999 SC 1416) laid down five broad parameters, to deal with case where departmental proceedings and criminal case are based on identical set of facts. The sub para (v) of Para 22 clearly indicates that If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they are stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date. Hence the respondents pray that the OA be dismissed.
7. We have considered the rival submissions of both counsel and have been through the pleadings and have no hesitation in holding that the order to re-open the departmental inquiry against the applicant suffers from no legal infirmity and is also justified. The applicant was involved in a case of corruption punishable under the Prevention of Corruption Act, which would fall in the category of the gravest of misconducts. It is of paramount importance that in such cases departmental proceedings be concluded early so that if the person involved is found guilty, appropriate action can be taken at the earliest. We do not accept the contention of the learned counsel for the applicant that having waited so long, now that arguments have been fixed in the criminal case, the respondents could have waited a little longer till conclusion of the criminal proceedings. The legal position in the matter is also quite clear that departmental and criminal proceedings can proceed simultaneously in the matter, and the Full Bench decision in the matter Sukhdev Singhs case (supra) has settled the matter conclusively. In any case, no prejudice would be caused to the applicant as in the event of his acquittal in the criminal proceedings, the decision taken in the departmental proceedings will have to be re-visited. The OAs cited/relied by the learned counsel for the applicant would not help him now that the Full Bench has settled the issue. The decision of the Full Bench is brought out in the succeeding paragraphs:
8. In OA No.2816/2008 a Division Bench had made a reference to the Full Bench with regard to the continuation (in the case of the Delhi Police) of departmental and criminal proceedings simultaneously on the same allegations in the context of the provisions of the Delhi Police (Punishment & Appeal) Rules. The relevant reference is extracted below:
51. However, the issue pertaining to the impact of rule 11 and Rule 12 as well as Rule 15 having not been considered either by the Tribunal or by the High Court of Delhi, it is a situation where we do not want any conflict on such an important legal issue and to have an authoritative pronouncement on the subject as to not only the vires of Standing Order No.125/2008 but also interpretation of Rule 11, Rule 12 and Rule 15 of the Delhi Police (Punishment & Appeal) Refer this matter before the Honble Chairman on administrative side to constitute a Full Bench to settle this issue as per law. The Full Bench re-framed the question to be answered by them as:
1. 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 (e) of the said rule, would it be permissible to have simultaneous departmental enquiry along with criminal trial; and
2. 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. and vide its order dated 18.02.2011 held 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 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.
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.
9. In view of the above discussion and the afore mentioned decision of the Full Bench, the OA is disposed of with a direction that the departmental proceedings against the applicant may continue and should be concluded expeditiously, but should the departmental proceedings culminate in an order of punishment earlier in point of time to the verdict in the criminal case and the criminal case results in an acquittal which is such that departmental proceedings cannot be held for the reasons as mentioned in Rule 12 of the Delhi Police (Punishment & Appeal) Rules, 1980, the order of punishment will have to be re-visited.
10. We make no order as to costs.
(Dharam Paul Sharma) (Shailendra Pandey)
Member (J) Member (A)
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