Central Administrative Tribunal - Delhi
Head Constable Vashisht Kumar No. 321/E vs Govt. Of Nctd Through on 28 January, 2013
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-3643/2012
Reserved on : 22.01.2013.
Pronounced on :28.01.2013.
Honble Mr. G. George Paracken, Member (J)
Honble Mr. Shekhar Agarwal, Member (A)
Head Constable Vashisht Kumar No. 321/E,
S/o Sh. Ram Niwas,
R/o H-15 Police Station Lajpat Nagar
III, Delhi. . Applicant
(through Sh. Sachin Chauhan, Advocate)
Versus
1. Govt. of NCTD through
the Commissioner of Police,
Police Headquarters, MSO Building,
I.P.Estate, New Delhi.
2. The Dy. Commissioner of Police,
3rd Bn., DAP Vikaspuri,
New Delhi.
3. Insp. Vimal Kishor,
Enquiry Officer,
3rd BN, DAP, Vikas Puri,
New Delhi. .. Respondents
(through Mrs. Sumedha Sharma, Advocate)
O R D E R
Mr. Shekhar Agarwal, Member (A) The applicant has sought the following relief:-
(i) To quash and set aside the order dated 12.9.12 whereby D.E. is re-opened at A-I and order dated 12.10.12 whereby the representation of the applicant has been rejected at A-2 and to further direct the respondent that applicant be exonerate from all the charge leveled against the applicant with all consequential benefits including seniority and promotion and pay and allowances.
Any other relief which this Honble court deems fit and proper may also be awarded to the applicant.
2. Brief facts of the case are that the applicant (HC Vashisht Kumar) was allegedly involved in dacoity by waylaying a motorcycle rider, namely, Sh. M.A. Masood and looting Rs.4.52 lakhs at gunpoint. During investigation, a case u/s 395/398 IPC was registered against the applicant and others. For involvement in this case the applicant was dismissed from Delhi Police vide their Order No. 8760-8860/HAP (P-III)/East dated 18.05.2007. Aggrieved by this order of dismissal, applicant filed OA-1859/2007 before the Principal Bench of this Tribunal. On 18.03.2008 the Tribunal pronounced the judgment in the said O.A. and in pursuance of the same the applicant was reinstated in service w.e.f. the date of his dismissal i.e. 18.05.2007. By the same order, disciplinary enquiry proceedings were started afresh and the applicant was deemed to have been placed under suspension w.e.f. the same date. The applicant filed another OA-3115/2011 before this Tribunal for quashing the order dated 21.06.2011 regarding initiation of departmental enquiry against him. The applicant was granted interim relief in the aforesaid O.A. which was as follows:-
The respondents shall not pass any final order in the departmental proceedings till the final outcome of the Present OA. Subsequently, the OA-3115/2011 was disposed of with the following order:-
3. In view of the fact that the respondents have themselves kept the inquiry in abeyance, although this Tribunal has not granted the stay regarding not proceeding with the inquiry proceedings and rather the order passed by the Tribunal was that final order in the departmental proceedings shall not be passed till the final outcome of the present O.A., we are of the view that the present O.A. can be disposed of in the light of the aforesaid decision taken by the respondents. It will be, however, permissible for the respondents to look into the matter again in the light of the observations made by them in their own order in the light of the provisions contained and thereafter pass an appropriate order in case they want to proceed with the matter, within a period of three months from the date of receipt of a copy of this order. Criminal case against the applicant was decided by Additional Sessions Judge on 04.08.2011 by which the applicant was acquitted. The operative part of the order reads as follows:-
41. In such circumstances when no independent public witness has been joined by the prosecution and the identity of accused persons as well as the recovery made from them is doubtful, it cannot be said that prosecution has been able to prove its case against the accused persons beyond shadow of doubt. As such both the accused persons are given benefit of doubt. They are acquitted of the offence. They are on bail. In view of the new amended section 437Aof Cr.P.C., the bail bond already furnished by the accused persons are extended for the period of 6 months with the condition that they shall appear before the Honble High Court as and when such notice is issued in respect of any appeal filed by the state against the judgement within a period of 6 months. Case property be confiscated to the state after the expiry of period of revision/appeal, if any. File be consigned to record room. However, the respondents noting that the Honble Court had acquitted the applicant for the offence because the Enquiry Officer had not associated independent public witness and the identity of the accused persons as well as the recovery made form them was doubtful and consequently the accused has been given benefit of doubt, decided vide their order dated 31.06.2012 to reopen the departmental enquiry which had been kept in abeyance. Aggrieved by this order, the applicant approached the Tribunal again and filed OA-567/2012, which was decided by this Tribunal vide their order dated 18.07.2012, which reads as follows:-
12. In all fairness, the respondents ought to have considered the representation on its merit, especially in view of the material which has a bearing on the decision in respect of applicability of Rule 12 of Delhi Police (Punishment Appeal) Rules, 1980.
13. In view of facts and circumstances of the case, the impugned Order dated 30.01.2012 is quashed and set aside and the matter is remitted back to the authority concerned to apply its mind to Rule 12 of Delhi Police (Punishment Appeal) Rules, 1980 with reference to the judgment given by the Addl. Sessions Judge-01, North Delhi and decide as to under which clause of Rule 12, the enquiry is being reopened by the respondents. While doing so, the respondents shall give due consideration to the applicants representation against such reopening (Annexure A-6). We further add that any observation made hereinabove shall not be construed as an expression of our opinion on the applicability of Rule 12 in the present case. Consequently, this OA is allowed. There is no order as to cost. Thereafter, the respondents holding that the applicant had been acquitted on technical grounds ordered reopening of the departmental enquiry against the applicant under Rule-12 (a) of Delhi Police (Punishment & Appeal) Rules, 1980. The applicant made a representation dated 17.09.2012 against the order dated 12.09.2012 by which the departmental enquiry had been reopened. However, the same was rejected by the respondents. Aggrieved by the same, the applicant has filed this O.A.
3. We have heard the learned counsel for both sides and perused the material placed on record.
4. Learned counsel for the applicant argued that reopening of the enquiry under Rule-12(a) of Delhi Police (Punishment & Appeal) Rules, 1980 was bad in law as the acquittal of the applicant in the criminal case was not on technical grounds. According to the learned counsel technical ground would have meant acquittal on the basis of not having proper prosecution sanction or on the point of limitation etc. However, in the instant case acquittal has been based on the assessment of evidence adduced before the Learned Judge. Learned counsel argued that 16 witnesses of the prosecution were examined by the Learned Judge of the Trial Court. In addition, 6 witnesses of defence were also examined. According to learned counsel, Learned Judge has observed as follows:-
41. In such circumstances when no independent public witness has been joined by the prosecution and the identity of accused persons as well as the recovery made from them is doubtful, it cannot be said that prosecution has been able to prove its case against the accused persons beyond shadow of doubt. As such both the accused persons are given benefit of doubt. They are acquitted of the offence.. Learned counsel argued that mere mention of the word benefit of doubt does not make any difference. He has cited in support of his contention the judgment of the Punjab and Haryana High Court in the case of Bhag Singh Vs. Punjab & Sind Bank, 2006(1)SCT 175 wherein it has been held that if the acquittal in a criminal case is for want of evidence to prove the criminal charge, mere mention of benefit of doubt by the Criminal Court is superfluous and baseless. Learned counsel also placed reliance on a judgment of this Bench of the Tribunal in OA-1664/2012 (Gyanender Singh Vs. GNCTD & Ors.) decided on 01.11.2012, paras-9 & 10 of which read as under:-
9. They have also stated that their prosecution Branch has found the following shortcomings on the part of the prosecution in the criminal case:
(a) The complainant Krishna Avtar Sharma was not examined in detail regarding the alleged forgery.
(b) The date of birth was not verified from the record of School/Board pertaining to the previous classes/education done by the accused.
(c) The application form sent by the school to the UP Board was not taken in possession in which the date of birth was mentioned by the School authority.
(d) The alleged forged certificate was not examined from FSL regarding the overwriting/alternation in the name.
10.We have heard Shri Anil Singal, the learned counsel for the applicant and Shri N.K. Singh learned proxy counsel for the respondents. As admitted by both the counsel for the parties in their pleadings, in order to reopen the departmental proceedings against a police official after his acquittal in the criminal case and to proceed against him on same set of charges, the conditions as aforementioned in Rule 12 of the Delhi Police (Punishment and Appeal) Rules, 1980 have to be satisfied. From the reply filed by the respondents, we do not find merit in their contention that the criminal case against the applicant failed on technical grounds. On the other hand, a reading of the judgment in the criminal case would reveal that there was no evidence whatsoever against the applicant to prove the charges levelled against him and it was on that account, he was acquitted. Rather, the court has said that the certificate alleged to have been submitted by the applicant was not at all a forged one. The respondents have also no case that they lost the case before the criminal court because the PWs have been won over. When the criminal court has categorically stated that the document in question has not been verified, there is no question of the respondents saying against it and to say again that the offence was actually committed. We also do not find any other conditions, as mentioned in the aforesaid Rule, applicable in the case. In the above facts and circumstances of the case, the applicant is not liable to be proceeded against departmentally under the provisions of the Delhi Police (Punishment and Appeal) Rules, 1980 and punished on the same charge or on a different charge upon the evidence cited in the criminal case. Consequently, we allow this OA and quash and set aside the impugned orders. We also direct the respondents to restore all benefits except back wages which have been denied to the Applicant on account of the initiation and pendency of the aforesaid criminal case as well as the departmental proceedings. The respondents shall also treat the period of suspension of the applicant as duty for all intents and purposes except for back wages. They shall also pass appropriate orders in compliance with the aforesaid directions within a period of two months from the date of receipt of a copy of this order granting the benefits to the applicant as ordered above. There shall be no order as to costs.
5. In their reply, the respondents have stated that since the applicant was acquitted (a) because the EO did not associate any public witness. (b) Identity of the accused persons as well as recovery made from them was doubtful. and (c) Because the Learned Judge has mentioned that the applicant has been given benefit of doubt, it was a fit case of proceeding under Rule-12(a) of Delhi Police (Punishment & Appeal) Rules, 1980.
6. In our opinion, Learned Judge of the Trial Court examined 16 prosecution witnesses and 6 defence witnesses. She has carefully assessed the evidence adduced before her by the prosecution as well as the defence and has come to the conclusion that the prosecution has not been able to prove its case against the accused person. It was for the IO to associate public witness with the prosecution and if this was not done for whatever reason, this cannot be held against the applicant. We are convinced that this case is covered by the judgment of the Punjab and Haryana High Court in the case Bhag Singh (supra) relied upon by the applicants counsel. We, therefore, hold that this acquittal cannot be termed as acquittal on technical grounds and consequently Rule-12(a) of Delhi Police (Punishment & Appeal) Rules, 1980 cannot be invoked to initiate departmental proceedings against the applicant. We, therefore, quash and set aside the order dated 12.09.2012 of the respondents by which disciplinary enquiry proceedings have been reopened against the applicant. The respondents will take a decision within 6 weeks regarding consequential benefits of pay and allowances, seniority and promotion of the applicant from the date of receipt of a certified copy of this order. There shall be no order as to costs.
(Shekhar Agarwal) (G. George Paracken)
Member (A) Member (J)
/Vinita/