Central Administrative Tribunal - Delhi
Satyapal Singh Yadav vs Comm. Of Police on 2 February, 2024
(OA No.3656
No.3656-2015)
(1
1)
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No.3656/2016
Reserved on :04.01.2024
Pronounced on :02.02.2024
Hon'ble Mr. R.N. Singh, Member (J)
Hon'ble Mr. Sanjeeva Kumar, Member (A)
Satyapal Singh Yadav
PIS No. 28103864
Constable of Delhi Police
Aged about 26 Years
S/o Sh. Ramesh Chand
R/o VPO: Ikrotia, Tehsil Kotkasin,
Distt: Alwar, Rajasthan ............. Applicant
(By Advocate: Shri Anil Singal)
Vs
1. Govt. of NCT of Delhi
Through Commissioner of Police,
PHQ, IP Estate, New Delhi
2. Special Commissioner of Police Northern Range,
PHQ, I.P. Estate, New Delhi.
3. DCP (Outer Distt.) Pitam Pura, New Delhi-34
Delhi 34
Respondents
(By Advocate: Shri Puneet Rathi for Ms. Rashmi Chopra)
ORDER
Hon'ble Mr. Sanjeeva Kumar, Member (A):
By way of this OA filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has sought the following relief(s) ::-
(OA No.3656-2015) (2) "1. To quash and set aside impugned Order initiating DE dt.14.7.2014, Findings dt. 15.9.2014, Order of Punishment dt.9.3.2015 and Appellate Order dt. 17.7.2015
2. To direct the respondents to restore to the applicant his original service and pay with all consequential benefits including promotion/seniority and arrears of pay.
3. To award costs in favor of the applicant and pass any order or orders which this Hon'ble Tribunal may deem just & equitable in the facts & circumstances of the case."
2. The assertion in the OA is that the applicant was falsely implicated in a case FIR No.562/14 U/S 354 IPC dt.3.6.2014. However, the complaints denied the offences alleged to have been committed by the applicant when their statements U/S 164 CrPC were recorded. Therefore, on the very next day he was granted bail. The applicant submits that the respondent No 3 vide order dt. 14.7.2014 without considering the pendency of criminal case illegally and in violation of Rule 12 of DP (P&A) Rules-1980 initiated departmental enquiry on the same set of allegations on which the criminal case was pending trial. On denial of charges by the applicant, a detailed enquiry was conducted by the enquiry officer who examined 6 PWs. The enquiry officer submitted his findings dt. 15.9.2014 to the disciplinary authority concluding therein that the charges leveled against the applicant are proved on (OA No.3656-2015) (3) the basis of the unsigned statements of the complainants alleged to have been recorded U/S 161 CrPC. It is submitted that the findings of the E.O. are perverse in nature and are based on 'No-Evidence' and the applicant has been held guilty on surmises and conjectures without applying his mind to the defense statement of the applicant, who has illegally proved the charges.
3. The applicant submits that he was acquitted on merits by the court in criminal case bearing FIR No.561/14 vide judgment dt.13.11.2014 and after acquittal from the criminal case, he was entitled to all consequential benefits, including seniority/promotion and arrears of pay. Therefore, the applicant requested the respondents that as he has been honorably acquitted by the court in criminal case, the departmental enquiry may be dropped.
4. The applicant further submits that contrary to above the disciplinary authority agreeing with the findings of the enquiry officer proved the charges against him and vide order dt.9.3.2015 awarded penalty of forfeiture of 4 years approved service permanently on the ground that PWs in criminal case turned hostile. However, no opinion was formed that the PWs were won over in criminal case and this is a fit case to be (OA No.3656-2015) (4) proceeded further as per Rule 12(b) of DP (P&A) Rules, 1980. He further submits that the respondent No. 3 passed order dt.9.3.2015 without considering the acquittal of the applicant and the effect of acquittal, illegally and in violation of Rule 12 of Delhi Police (Punishment & Appeal) Rules 1980 on the same set of allegations on which he was acquitted in criminal case over looking that the applicant does not fall in any of 5 exceptions mentioned in 12 and there is total non-application of mind by the disciplinary authority while passing order dt.09.03.2015.
5. It is put forward by the applicant that he filed an appeal before the appellate authority against the order of punishment praying for reconsideration of the case and to quash and set aside the impugned order of punishment and raised a number of questions of the fact and law for the consideration of his case. Thereafter, the appellate authority vide order dt.17.7.2015 rejected the appeal of the applicant without applying its mind to the facts and legal points raised in the appeal and mechanically endorsed the perverse and untenable reasoning given by the respondent no.3 in agreeing with the findings of guilt, with a non-speaking and cryptic order.
(OA No.3656-2015) (5)
6. It is further submitted that Rule 12 (b) of DP (P&A) Rules gives jurisdiction to the DCP to form an opinion whether or not any PW was won over during the trial in a criminal case, but it is dependent on the findings of the criminal court since it is only Prosecution who must make a complaint or court must issue a charge-sheet that witness is giving false evidence because he has been won over, since the act of won over means that the witness is giving false evidence intentionally; an offence U/s 191 R/w. 193 IPC, 340 & 344 with Sec. 195 (b) Cr. P.C. r/w Sec. 154 & 155 (2) of Evidence Act. But no such proceedings were initiated in court of law either by court on its own nor was any such application made by prosecution.
7. It is reiterated that turning hostile means only that the witness is not deposing in tune with alleged earlier statement whereas in case of won over the PP must show to the court that witness is telling a lie in the court in order to say the witness is giving false evidence because he has been won over. Merely because a witness turned hostile, it cannot be said that he has been won over. Thus, whether a witness has been won over or not can be declared only by Criminal Court and not by DCP since it is the power/jurisdiction and (OA No.3656-2015) (6) prerogative of the criminal court to declare whether a witness has been won over or not at the time of delivery of judgment or during trial but no such opinion was expressed by the concerned court at the time of delivery of judgment or during trial. The applicant who was prosecuted on a criminal charge and was acquitted on merit cannot be subjected to a departmental punishment on the same facts again since as the court would not sit in judgment over the departmental enquiry as an appellate court, a departmental authority also cannot be permitted to sit in judgment over a court of law as if it were an appellate authority.
8. The applicant submits that as per the judgment of the High Court of Delhi in Mohan Lal Vs Union of India 1982 (1) SLR 573 "Acquittal of a Govt. Servant on benefit of doubt is complete acquittal on merits and consequentially the concerned Govt. Servant shall be entitled to full pay and allowances". Therefore, the acquittal of the applicant is a complete acquittal on merits and initiation of the departmental enquiry on the same set of facts, evidence and charges is liable to be set aside/quashed.
9. The DA/EO for proving the charges against the applicant has taken into consideration the alleged earlier statement of (OA No.3656-2015) (7) PWs recorded during the investigation U/S 161 CrPC in preference to what the PWs stated in criminal caseU/S 164 CrPC.
10. It is further claimed that the observation of the EO in findings and in final order by the disciplinary authority that PWs turned hostile is based on "No Evidence" as nothing has come on record which could prove that these PWs turned hostile as they were won over by the applicant. Moreover, merely because the witness did not speak in tune with his alleged statements recorded earlier does not mean that witness turned hostile were won over by the applicant. Therefore, the whole enquiry proceedings are liable to be set aside/quashed.
11. It is pleaded that in same set of facts and circumstances, a Constable named Satya Dev Singh filed O.A. No. 1053/2004 in this Tribunal whereupon the Tribunal was pleased to direct the E.O. to postpone the D.E. proceedings beyond next date of hearing vide order dt.27.4.2004 and ultimately the D.E. itself was quashed vide judgment dt. 13.8.2004 that has been confirmed by the Hon'ble High court of Delhi vide Judgment dt. 21.4.05 in WP No.4431/05 in "Govt. of NCT of Delhi v/s Satya Dev Singh" and Hon'ble (OA No.3656-2015) (8) Supreme Court also by dismissing the SLP filed against the judgment dt. 21.4.05. A number of judgments, SI Ram Phool Meena vide O.A. No. 33/08 dt.2.6.2008 filed O.A. No. 1686/06 judgment dt.09.10.2009 filed O.A No.80/08 dated 17.01.2009 have also been cited wherein Tribunal was pleased to quash the orders of punishment in identical cases.
12. The respondents in their counter reply/rejoinder have disputed the claim made in the OA and contended that the competent Court has acquitted the applicant vide judgement dated 13.11.2014 in case FIR No.562/14 u/s 354 IPC, PS Mukherjee Nagar, Delhi on the ground that the case of prosecution is not supported by the key witnesses i.e. the victim, her friend and neighbor, as they have deposed nothing incriminating against the applicant and complainant herself denied the presence of the applicant at the place of incident. Before awarding the punishment to the applicant, his acquittal in criminal case was also examined under rule 12 of Delhi Police (Punishment & Appeal) Rules, 1980 and found that although the victims and her neighbour have become hostile during trial of the case but during DE proceedings, the charge leveled against the applicant has been fully proved based on the PCR calls, statement of Geetanjali upon which (OA No.3656-2015) (9) the case was registered and statement of other victim Ayushi Vaid recorded u/s 161 Cr. PC.
13. Learned counsel for the respondents argues that the criminal proceedings and proceedings in departmental enquiry are quite distinct and different. In criminal proceedings, sufficient proof is required to frame the charge, whereas in the departmental proceedings the preponderance of probability is sufficient to prove the guilt of an earring official. The Hon'ble Supreme Court in the case of Kendriya Vidyalaya Sangthan and Other Vs. T. Srinivas (AIR 2004 SC 4127) has held that the standard of proof, mode of enquiry and the rules governing the enquiry and trial in both the cases are distinct and different. Thus, on the testimony of PWs and records brought during the DE proceedings, it was established that the applicant had misbehaved with two girls under the influence of liquor, which is not expected from the member of disciplined force. Even, the applicant himself admitted in his representation about the consumption of liquor, which is also a violation of Rule 3 of CCS (Conduct) Rules, 1964, which says that a Police officer will not do any such act which is unbecoming of a Police officer even while he is not on duty but the applicant has done a mischievous act, (OA No.3656-2015) (10) in violation of this rule also. Hence, the punishment awarded to the applicant is just, legal and commensurate to his delinquency duly proved during the course of DE proceedings. It is reiterated that the acquittal of the applicant was examined under Rule 12 of Delhi Police (Punishment & Appeal) Rules, 1980 and it was observed that the applicant has been acquitted due to the fact that the complainant and key witnesses had turned hostile. However, during the course of DE proceedings, the charge leveled against him is fully proved. Hence, he has been awarded the punishment under appeal for his misdeed duly proved during DE proceedings. However, on acquittal, his name has been deleted from the list of police personnel facing criminal cases.
14. Reiterating the contention made in the counter reply, the learned counsel for the respondents submits that though the victims and other witnesses had become hostile during trial of the case but during DE proceedings the charge leveled against the Applicant has been proved because the PCR calls and statement of Geetanjali upon which the case was registered and statement of other victim Ayushi Vaid recorded u/s 161 Cr. PC clearly goes to prove that the applicant has committed the misdeed. The Applicant (OA No.3656-2015) (11) misbehaved with two girls under the influence of liquor, which is not expected from the members of disciplined force. Hence, the punishment order dated 09.03.2015 passed by the disciplinary authority is just, right, legal and commensurate to the gravity of the misconduct of the applicant.
15. The learned counsel for the respondents, at the cost of repetition, emphasizes that the criminal proceedings and proceedings in departmental enquiry are quite distinct and different. In criminal proceedings, sufficient proof is required to frame the charge, whereas in the departmental proceedings, the preponderance of probability is sufficient to prove the guilt of an earring official. There is no illegality in the initiation of departmental enquiry against the applicant as the Hon'ble Supreme Court of India in the case of Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd.[AIR 1999 SC 1416] has held that the departmental proceedings and proceedings in a criminal case can proceed simultaneously and the court ruling cited by the applicant has no direct bearing with his case as each and every case is decided on its own merit.
16. We have perused the pleadings on record and also heard Shri Anil Singal, learned counsel for the applicant and Shri Puneet Rathi for Ms. Rashmi Chopra, learned counsel (OA No.3656-2015) (12) for the respondents.
17. Since both the sides have laid emphasis on Rule 12 of Delhi Police (Punishment & Appeal Rules, 1980, in the course of their submissions, we consider it important to cite the relevant provision of Rule 12 for proper adjudication of the case. Rule 12 of the said Rules reads as follows:
"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 had 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 discloses 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."
18. It is not in dispute that the applicant in this case has been tried and acquitted by the criminal court and as per the above provisions, he cannot be punished departmentally on the same charge or on a different charge upon the evidence (OA No.3656-2015) (13) cited in the criminal case, barring the five exceptions mentioned above.
19. The learned counsel for the respondents contends that the instant case attracts the provision of both Rule 12 (a &
b) as the criminal proceeding in the competent court did not succeed on technical grounds, because the witnesses turned hostile. He argues that the act of witnesses turning hostile is covered by the expression "failed on technical grounds"
and both Sections (a) and (b) of Rule 12 are to be looked at holistically.
20. The learned counsel for the applicant, on the other hand, states that even though the witnesses turned hostile, in the instant case, there is nothing to suggest that they had been won over. Further, though Rule 12(b) of the said Rules states that the DCP can form the opinion whether or not any prosecution witness was won over during the trial in the criminal case but his opinion itself depends on the findings of the criminal court case since it is only prosecution who makes a complaint to the effect that witnesses is giving false evidence as he has been won over but no such proceedings were initiated in the competent court. Also just because the witnesses turned hostile, it does not lead to the conclusion (OA No.3656-2015) (14) that the criminal charges failed on technical ground. It is also emphasised that the applicant has been punished departmentally on the same charge upon the evidence cited in the criminal case. As such there is nothing to suggest that Rule 12 or the exceptions mentioned are applicable in this case.
21. The learned counsel for the respondents,on the other hand, in support of their claim that the case qualifies under Rule 12 (a) and (b) exceptions has cited a catena of judgments by different courts.More particularly the following judgementsis are mentione to bolster their contention.In matter of Vashisht Kumar vs. Govt of NCTD and Ors, vide OA No.3643/2012 decided on 20.04.2018, the Tribunal held as follows:
"18. The alleged crime committed by the applicant in the instant case is also of the same seriousness and gravity. This whole process raises serious question as to the propriety of dropping departmental enquiries against such persons who have somehow managed to get acquittals not because the crime was not proved but because the key witnesses either became hostile and absented themselves or did not depose in a manner that could have established the crime. It is this factor that the High Court, as observed in Ajayvir Gulia's case (supra), expects the Tribunal to keep in mind while adjudicating this particular case.
23. The purpose of highlighting some of the findings of the trial court is only to comprehend the trial court's line of logic while acquitting the applicant by giving him (OA No.3656-2015) (15) The benefit of doubt and not to analyse or dissect the order which does not fall in our domain, However, if we concede that a departmental enquiry is merely a process to find out the truth about the alleged misconduct and the process itself is not a pronouncement of gait of any government employee, holding a departmental enquiry may seem to be in the interest of justice. It is true that the enquiry has been re-opened under Rule 12(a) of the Delhi Police (Punishment & Appeal) Rules, 1980 on the ground that acquittal of the delinquent employee had been on technical ground. The implication and import of the word technical ground is for more extensive. It could be argued that not producing an independent public witness is also a technical lapse on the part of the prosecution, it may appear to be a weak argument but it is an argument nevertheless. The whole purpose of re-opening the departmental enquiry is to establish, in a sense, culpability of the delinquent employee in the alleged misconduct, if any. Therefore, denying departmental enquiry at this stage would mean that the logic of the criminal act not having been convincingly established in the criminal trial on account of benefit of doubt is being extended to the process of departmental enquiry as well. In other words, forecloses the option of the respondents to look at the alleged misconduct of the employee afresh through a due process of law.
27. It may not be appropriate to mention here in passing the above discussed High Court's order in George N.S. vs. Commissioner of Police (supra), which was decided on 12.08.2011, was prior to the decision of the same High Court in Ajayvir Gulia's case (supra) which was passed on 30.05.2013. To us, it does not seem likely that the High Court of Delhi while passing the order in Ajayvir Gulia's case (supra), was unmindful of the judgment in George N.S. vs. Commissioner of Police (supra) delivered on 12.08.2011. Therefore, we would like to look at the facts of this case through the prism of High Court's order in Ajayvir Gulia's case (supra). The key issue for consideration before us is whether absence of an independent public witness given as a ground for acquittal in this case amounts to 'technical acquittal. We have deeply thought about this and we have come to the conclusion that absence of (OA No.3656-2015) (16) independent witness could be construed as a technical acquittal. Here, the nature of the crime and the circumstances and timing of the crime raises a distinct possibility that the incident may not have been noticed by anybody because in all likelihood it took place within a very short period of time. In our view, there was no requirement to produce any independent private witness because the circumstances in which the incident took place did not offer a possibility of an independent private witness. The fact of the matter is that the trial court, has, however, made it a very important ground. A reading of the trial court judgment reveals that the very first ground for acquitting the applicant is 'absence of independent public witness'.
The basis for our saying so could be tenuous, but it is not without substance and, therefore, seen this in conjunction with other factors of the case and considering the unfortunate trend of police personnel getting away from the departmental proceedings even after committing heinous crimes because they got the benefit of doubt in criminal case, our balanced and considered view is that no injustice shall take place if the applicant is proceeded against departmentally. After all, departmental proceedings against him will also follow the rules laid down in this regard and initiation of a departmental enquiry does not, in any way, imply that the employee's misconduct stands proved and established. Departmental proceedings are expected to be conducted and concluded in a fair manner and if in this process the applicant is found to be not guilty, so be it.
22. In the matter of Azad Singh vs. Govt of NCTD and Ors, vide WP(C) No.8939/2017 decided by the Hon'ble High Court of Delhi on 11.10.2017 it was held:
8. The respondent contested the O.A. by claiming that the petitioner's acquittal was not a clean acquittal, and the acquittal was a result of the giving of the benefit of doubt to the petitioner, since the prosecution witnesses (OA No.3656-2015) (17) had turned hostile. The respondent placed reliance on several decisions in this regard, including the following:
i) State of West Bengal & Ors. vs Sankar Ghosh, (2014) 3 SCC 610;
ii) Deputy Inspector General Vs. S. Samuthiram (2013) 1 SCC 598;
iii) Commissioner of Police, New Delhi Vs Meher Singh (2013) 7 SCC 685;
iv) Commissioner of Police v. Raj Kumar in W.P. (C.) No. 4304/2013 decided by Delhi High Court; and
v) Ajit Kumar Nag v. General Manager v. General Manager (Pj), Indian Oil Corporation Ltd., Haldia & Ors., (2005) 7 SCC 764.
10. The tribunal rejected the petitioner's submissions. While doing so, the tribunal examined the judgment rendered by the learned Special Judge acquitting the petitioner in the criminal trial. In para 12.2 of the said judgment, on the issue of the complainant turning hostile during his cross examination, it observed that he had turned around in his testimony after a gap of nine months of his examination-in- chief, which indicated that his subsequent testimony in court was influenced by some extraneous factors. In fact, the Trial Court discarded the cross examination of the complainant (PW-6) and relied upon the examination-in-chief of the said witness. Similarly, the panch/shadow witness - one Naresh Taank (PW-14), who was an employee of the Food and Supply Office of the Delhi Govt. had turned hostile. So also constable Arun Mathur (PW-13) had turned hostile.
12. Consequently, the tribunal held that the case of the petitioner squarely fell in clauses (a) and (b) of Rule 12 of the Delhi Police (Punishment & Appeal) Rules, 1980. The tribunal also observed that there was a distinction between a clean acquittal and acquittal premised on benefit of doubt, or on technical grounds, or witnesses turning hostile. In this regard, the tribunal referred to Capt. M. Paul Anthony v. Bharat Gold Mines Ltd., (1999) 3 SCC 679. The tribunal held that the decision of Full Bench in Sukhdev Singh (supra) had considered the issue of honourable and clean acquittal, whereas in the case of the petitioner, his acquittal was (OA No.3656-2015) (18) premised on benefit of doubt, hostile witnesses and on technical grounds. Consequently, the tribunal dismissed the O.A.
20. We have considered the submissions of learned counsels, perused the record, including the impugned order, and the judgment rendered by the learned Special Judge (PC Act) dated 19.07.2013 and, in our considered view, there is absolutely no merit in the submissions of the petitioner. There is no infirmity in the impugned order and the same does not call for interference in the facts & circumstances of the case.
22. It is not the petitioner's case that there was any infraction of any of the procedures, or that there was any violation of principles of natural justice which caused any prejudice to the petitioner in the conduct of the disciplinary proceedings. It is also not his case that it was a case of 'no evidence' against the petitioner, or that the findings recorded against him in the disciplinary proceedings were perverse. No such argument has been advanced by Mr. Raju before us.
23. In the matter of Ex.Const. Satbir Singh& Anr. vs. Govt of NCTD and Ors, vide WP(C) No.196/2003 decided by the Hon'ble High Court of Delhi on 22.12.2014, relevant paras read as follows:
"14. With respect to the interpretation of Rule 12, and whether it was attracted in the instant case, this Court notes that this question must be answered in light of the Supreme Court's observations in Capt. Paul M. Anthony vs Bharat Gold Mines, (1999) 3 SCC 679:
"As we shall presently see, there is a consensus of judicial opinion amongst the High Courts whose decisions we do not intend to refer in this case, and the various pronouncements of this Court, which shall be copiously referred to, on the basic principle that proceedings in a criminal case and the departmental proceedings can proceed simultaneously with a little (OA No.3656-2015) (19) exception. As we understand, the basis for this WP(C) No.196/2003 Page 9 proposition is that proceedings in a criminal case and the departmental proceedings operate in distinct and different jurisdictional areas. "
16. In Joginder Singh vs Govt of NCT, Delhi, (W.P. (C.) No. 2371/2004, the petitioner was dismissed from service on grounds of forgery. He was also acquitted in the criminal trial, when the complainant turned hostile. A division bench of this Court held that:
"Mere fact that the petitioner has been acquitted in the criminal case which in view of the observation made by the Learned Magistrate while passing the Judgment of acquittal is not a clean acquittal but is based upon benefit of doubt inasmuch as the complainant turned hostile does not entitle the petitioner to take benefit thereof as his case is not covered by any of the exceptions in Rule 12 more so when the acquittal has come only after the departmental proceedings were over."
19. Furthermore, this Court also notes that exceptions
(a), (b) and (c) are all arguably attracted in the present case, since the acquittal was based on the fact that prosecution witnesses, who had deposed in the Departmental Enquiry, failed to appear. In this regard, the observations of the Supreme Court in Secretary, Minister of Home vs Tahir Ali Khan Tyagi, 2002 (94) FLR 453, are pertinent:
"That apart, the second part of Rule 12 of the rules, unequivocally indicates that a departmental proceeding could be initiated if in the opinion of the court, the prosecution witnesses are found to be won over. In the case in hand, the prosecution witnesses did not support the prosecution in the criminal proceeding on account of which the public prosecutor cross-examined them and therefore, in such a case, in terms of Rule 12, a departmental proceeding could be initiated."
21. In the present case, the Petitioners had sufficient opportunity to cross-examine the eight prosecution witnesses, and did so; despite that, the Departmental Enquiry - and subsequently, the disciplinary and (OA No.3656-2015) (20) appellate authorities - returned a finding of guilt. In light of this, and in light of the fact that before the criminal proceedings, the very same witnesses who had deposed and were cross-examined did not appear, this Court is of the opinion that the criminal acquittal can be said to be little more than on technical grounds. Therefore, in light of clear precedents on this issue, this Court feels that the argument that Rule 12 acts as a bar to the Departmental Enquiry and punishment is not well-founded."
24. In the matter of State of Uttarakhand and Ors vs. Prem Ram, vide Civil Appeal No.3152 of 2019 decided on 15.03.2019,hon'ble supreme court was of the following view-
"2. In 1987, the respondent joined service as a Constable and was posted in the District of Pithoragarh, Uttarakhand. While he was posted at Berinag, Uttarakhand it was alleged that he was found in an inebriated state on 1 November 2006 and was misbehaving with the public. He was brought to the police station and was confined to the barracks. A medical examination was done, which showed that he was under the influence of alcohol. A charge sheet was issued to the respondent on 24 February 2007. After a disciplinary enquiry, the enquiry officer found that the charge of misconduct was substantiated. Following this, a notice to show cause was issued on 3 May 2007. The respondent submitted his reply on 8 May 2017. On 16 May 2007, the Superintendent of Police, Pithoragarh passed an order of dismissal, holding that the charge of drunkenness and misbehavior had been proved. In the writ proceedings instituted by the Respondent, on 21 April 2010, the High court disposed of the matter by relegating him to the remedy of a statutory appeal. The appeal was dismissed by the Inspector General of Police, Kumaon Range on 28 August 2010 and a revision was dismissed by the Additional Director General of Police on 19 May 2011.
7. The charge against the respondent was of a serious act of misconduct involving drunkenness and (OA No.3656-2015) (21) misbehavior with the public. The fact of intoxication was duly proved in the medical report. Having regard to the seriousness of the charge of misconduct and the fact that the respondent was a member of the police service, we find no justification for the High Court to interfere with the order of dismissal. The learned single Judge in the judgment dated 15 September 2014 was justified in dismissing the writ petition. The Division Bench has erred in allowing the Special Appeal. The order of the learned Single Judge did not suffer from any error of fact or law."
25. In the matter of State Bank of India vs. A.G.D.Reddy, vide Civil Appeal No.11196 of 2011 decided by the Hon'ble Supreme Court of Delhi on 24.08.2023, the following emerged:
"35. Shri Sanjay Kapur, learned counsel for the Bank relies on State Bank of India vs. Ram Lal Bhaskar and Another, (2011) 10 SCC 249. In that judgment the scope of judicial review of departmental proceedings was set out and the principle laid down in State of A.P. vs. S. Sree Rama Rao, AIR 1963 SC 1723, was reiterated, which reads as follows:-
"7. ... The High Court is not constituted in a proceeding under Article 226 of the Constitution a Court of appeal over the decision of the authorities holding a departmental enquiry against a public servant: it is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence."
(OA No.3656-2015) (22)
13. Thus, in a proceeding under Article 226 of the Constitution, the High Court does not sit as an appellate authority over the findings of the disciplinary authority and so long as the findings of the disciplinary authority are supported by some evidence the High Court does not re-appreciate the evidence and come to a different and independent finding on the evidence. This position of law has been reiterated in several decisions by this Court which we need not refer to, and yet by the impugned judgment the High Court has re- appreciated the evidence and arrived at the conclusion that the findings recorded by the enquiry officer are not substantiated by any material on record and the allegations leveled against the respondent no.1 do not constitute any misconduct and that the respondent no.1 was not guilty of any misconduct..
36. It is now well settled that the scope of judicial review against a departmental enquiry proceeding is very limited. It is not in the nature of an appeal and a review on merits of the decision is not permissible. The scope of the enquiry is to examine whether the decision-making process is legitimate and to ensure that the findings are not bereft of any evidence. If the records reveal that the findings are based on some evidence, it is not the function of the court in a judicial review to re-appreciate the same and arrive at an independent finding on the evidence. This lakshman rekha has been recognized and reiterated in a long line of judgments of this Court.
39. The law is well-settled that if in a disciplinary proceeding, the order of penalty can be imposed on the charges proved and the punishment imposed is lawfully sustainable on those charges, it is not for the Court to consider whether those grounds alone would have weighed with the authority in imposing the punishment. No doubt, on the facts of the present case, on some aspects of the charge, 33 the proof may have been found wanting. However, since the law laid down by this Court is that unless punishment imposed is only co-relatable to any of those charges found not proved, the penalty cannot be set aside. In this case, the punishment can be sustained even if the charges held not proved are severed. [See State of Orissa vs. Bidyabhushan Mohapatra [1963] Supp. 1 SCR 648 and (OA No.3656-2015) (23) Deputy General Manager (Appellate Authority) and Others. v Ajai Kumar Srivastava, MANU/SC/0005/2021:(2021) 2 SCC 612].
26. We have considered the above cited judgments. Through these judgments the learned counsel for respondent has reiterated that if the delinquent person/persons managed to get acquittal, it is not because the crime was not proved but because the key witnesses either became hostile or did not depose in a manner that could have established their guilt, this should not lead to dropping of the departmental proceedings (DE) as DE is a process to find out the truth about the alleged misconduct and the process itself is not a pronouncement of guilt. It is argued that as a matter of fact, witnesses turning hostile or not deposing in a manner to establish the crime, can be seen in the light of failure on technical ground as implication of word 'technical ground' is very extensive and not producing an independent public witness is also a technical lapse. Further if the respondents' acquittal is not a clean acquittal and was a result of giving benefit of doubt to the petitioner, as the prosecution witnesses had turned hostile, it falls within the realm of clauses (a) & (b) of Rule 12 of Delhi Police (Punishment & Appeal) Rules-1980. It has been (OA No.3656-2015) (24) contended that since charge against the respondent was of a serious act of misconduct involving drunkenness and misbehavior with the public, there is no justification for the Courts to interfere with the order of the competent authority. The cited judgments also point out towards the well settled principle that the scope of judicial review in a departmental enquiry proceeding is very limited.
27. The applicant, on the other hand, has relied upon a set of judgments as follows:
In the matter of Commissioner of Police, Delhi vs. H.C.Laxmi Chand vide WP(C) No.22584 /2005 decided on 09.09.2011 in the context of acquittal on technical grounds, it was held:
"34. In the order dated 17th May, 2001 except stating that the acquittal is based on technical grounds, no reason had been given as to why the acquittal is allegedly based on the technical ground. The tribunal while setting aside the order passed by the petitioner reopening the disciplinary proceedings relying on the exception in Rule 12 had referred to a decision of another Coordinate Bench in OA No.2640/2002, titled as „Vijender Singh v. Commissioner of Police‟ decided on 24th July, 2003 where it was held that once evidence had been allowed to be produced and the evidence adduced is not sufficient, then in such circumstances, the acquittal of the accused would be an acquittal and not an acquittal on technical ground. Citing some of the instances of technical acquittal it was held that it would be acquittal on technical grounds, if an unauthorized person files a complaint or the petition fails before a court or it fails on technical aspect e.g. there is no proper sanction, or the report has not been lodged by the competent authority, or there is such other procedural flaw which may prompt the criminal Court to put an end to the prosecution case. Then in such circumstances acquittal will be a technical acquittal. However, in such cases of technical acquittal the prosecution may still be in a position to come back to the court after (OA No.3656-2015) (25) rectifying the technical flaw. But if the acquittal is after appreciation of evidence adduced against the accused, the prosecution or State cannot go back and initiate another criminal case against the accused or bring more evidence on the same charges. The learned counsel for the petitioner has not been able to demonstrate in the facts and circumstances that the acquittal of the respondent is on technical grounds, even though the criminal court had perused the evidence of all the witnesses and did not find sufficient evidence to conclude on the guilt of the respondent. The Court did not think it appropriate to rely on the testimony of the PW9 Narain Singh, one of the witnesses of the alleged recovery, in view of the other witnesses of recovery becoming hostile and not supporting the prosecution version. The prosecution did not even challenge the order of the acquittal of the respondent in appeal. No precedent has also been cited on behalf of the petitioner to establish that in such circumstances as in the case of the respondent, acquittal can be construed as a technical acquittal.
35. Consequently, the inferences on behalf of the petitioner in its order dated 17th May, 2001 invoking sub section (a) of Rule 12 of the Delhi Police (Punishment & Appeal) Rules, 1980 cannot be sustained and it cannot be held that the acquittal of the respondent was on technical grounds so as to give jurisdiction to the petitioner to re-open the departmental proceedings which were kept in abeyance on account of the pendency of the criminal case against the respondent on the same charges.
In the matter of Govt. of NCT of Delhi & Ors. vs. Nihal Singh & Ors., vide WP(C) No.186/2021 decided on 24.07.2023 in defining the scope of Rule 12 of the Rules of 1980, the High Court held as under:
"20. Insofar as the reliance placed by Mrs. Avnish Ahlawat on Rule 12 of the Rules of 1980 is concerned, it is to be seen whether the acquittal of the respondents was on a technical ground or it was an honourable acquittal. In this regard, it is necessary to highlight the following findings of the criminal court acquitting the respondents herein:-
"15. It is .... illegible.....from one above discussion that prosecution has failed to produce any incriminating evidence to prove the commission of offence punishable under Section 223 of Indian Penal Code beyond .... illegible.. used beyond reasonable doubt.
16. In view of the above discussion, by extending benefit of doubt, the accused are hereby acquitted of the charge leveled against them (OA No.3656-2015) (26) under Section 223 of Indian Penal code. The accused are on bail. Therefore, bail bond stand discharged. File be consigned to record room after due compliance."
21. It is clearly discernable from the aforesaid findings of the criminal court that the prosecution had failed to produce any incriminating evidence to prove the commission of offence punishable under Section 223 of the Indian Penal Code, 1860, beyond reasonable doubt.
22. Having said that it is necessary at this stage to highlight the judgment of the Supreme Court in the case of Deputy Inspector General of Police and Anr. v. S. Samuthiram, (2013) 1 SCC 598, wherein the Supreme Court, had the occasion to decipher the Signature Not Verified Digitally Signed Signing Date:24.07.2023 16:56:11 expression 'honourable acquittal' in the following manner:
"24. The meaning of the expression „honourable acquittal‟ came up for consideration before this Court in RBI v. Bhopal Singh Panchal [(1994) 1 SCC 541 : 1994 SCC (L&S) 594 : (1994) 26 ATC 619] . In that case, this Court has considered the impact of Regulation 46(4) dealing with honourable acquittal by a criminal court on the disciplinary proceedings. In that context, this Court held that the mere acquittal does not entitle an employee to reinstatement in service, the acquittal, it was held, has to be honourable. The expressions 'honourable acquittal', 'acquitted of blame', 'fully exonerated' are unknown to the Code of Criminal Procedure or the Penal Code, which are coined by judicial pronouncements. It is difficult to define precisely what is meant by the expression 'honourably acquitted'. When the accused is acquitted after full consideration of prosecution evidence and that the prosecution had miserably failed to prove the charges levelled against the accused, it can possibly be said that the accused was honourably acquitted."
(emphasis supplied)
23. From the above, it is noted that the Supreme Court, clearly held that when an accused is acquitted after full consideration of prosecution evidence and that the prosecution had miserably failed to prove the charges levelled against the accused, it can possibly be said that the accused was honourably acquitted. In the present case also, there is a clear conclusion of the criminal court that the prosecution has failed to produce any incriminating evidence to (OA No.3656-2015) (27) prove the commission of offence punishable under Section 223 of the Indian Penal Code, 1860, against the respondents herein. Reliance is also placed in the matter of George N.S. vs. Commissioner of Police, vide WP(C) No.4941/2000 decided on 12.08.2011 to clarify as to what is meant by acquittal on technical grounds. Relevant paras of the said judgment read as follows:
"11. Thus, it would be essential to see as to whether the acquittal recorded by learned MM was on technical ground or not. It may be reiterated that the petitioner was charge-sheeted vide FIR No.351 in the year 1991. The prosecution has failed to examine before the criminal court not only the witnesses Dr. Rajeev Sharma & Ms. Licy, but also the other witnesses who were police officials. The court repeatedly adjourned the case for the prosecution evidence, but no efforts were seen to have been made by the prosecution in leading evidence. Ms. Licy, whose examination-in-chief was recorded, was never produced for her cross examination. Even the case property, the plain paper notes, were also never produced. Left to this situation, the Court had no option, but to close the evidence and record acquittal stating that the prosecution has not been able to prove its case beyond reasonable doubt. The recording of acquittal being clear, it cannot be said to be based on technical ground.
12. The acquittal on account of prosecution failing to prove its case beyond reasonable doubt or on account of lack of evidence or no evidence cannot be termed as acquittal on technical ground. Such grounds i.e. technical ground, would be, to illustrate a few, limitation which has now been prescribed by recent amendment in Cr.P.C or trial without obtaining sanction as required under Section 197 Cr.P.C in cases where it is required and the trial being held without obtaining such sanction. If the legislature intended that acquittal on account of benefit of doubt or prosecution failing to prove a case beyond reasonable doubt etc. were not to be a bar in the departmental proceedings, it would have so specifically provided as Exception in Rule."
(OA No.3656-2015) (28)
28. Relying on the above judgments, the learned counsel for the applicant has argued that this is a case of clean and honourable acquittal and just because the witnesses turned hostile it cannot be said that they were won over or it involved failure on technical grounds. It is also contended that the acquittal of the delinquent is not on technical ground. In the instant case, the evidence was allowed to be produced but the evidence adduced was not sufficient and it was a case of acquittal rather than acquittal on technical ground. Elaborating as to what is the acquittal 'on technical grounds', it has been argued that the scope includes unauthorised persons filing a complaint, no proper sanction, or some procedural flaw which may prompt the criminal Court to put an end to the prosecution case. In such cases of technical acquittal, the prosecution can always come back to the court after rectifying the technical flaw. In this case, the reasons for the acquittal are entirely different and it does not come within the purview of technical failure. It is also brought that the acquittal on account of prosecution failing to prove his case beyond reasonable doubt or on account of lack of evidence or no evidence, cannot be termed as acquittal on technical ground. It is averred that the (OA No.3656-2015) (29) expressions "honourable acquittal's not known to the Code of Criminal Procedure or the Penal Code, which have been coined by judicial pronouncements. When the accused is acquitted after full consideration of prosecution evidence, it can possibly be said that the accused was honourably acquitted.
29. We have considered these submissions, especially claims made through the judgments cited by either side and considered whether the case falls within the scope of Rule
12.
30. The undisputed fact is that the delinquent was found guilty in the departmental proceedings conducted but he was tried and acquitted by a criminal court and thumb rule is that 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 the criminal charge has failed on technical grounds, or in the opinion of the court, or in the opinion of the Deputy Commissioner of Police, the prosecution witnesses have been won over. Though the definition of failure on technical ground may not be precise and even if we accept that the acquittal in the criminal case was not an honourable (OA No.3656-2015) (30) acquittal even though the witnesses had turned hostile, the fact remains that none of the witnesses could identify the accused, failing which the witnesses were cross-examined by the APP but nothing material came out in his cross- examination. Therefore, the competent court held that in the facts and circumstances the case of prosecution is not supported by the key witnesses i.e. the victim, her friend and neighbor as they had deposed nothing incriminating against the applicant and complainant herself denied the presence of the applicant at the place of incident. Upon testimony of the key witnesses offence was not proved and it was held by the competent court that accused cannot be held guilty.
31. To our mind, such acquittal based on lack of evidence does not qualify to be called 'an acquittal on technical ground'. We rely on the judgment in Commissioner of Police, Delhi vs. H.C.Laxmi Chand (supra) wherein the Hon'ble Delhi High Court held as follows:
"34........Citing some of the instances of technical acquittal it was held that it would be acquittal on technical grounds, if an unauthorized person files a complaint or the petition fails before a court or it fails on technical aspect e.g. there is no proper sanction, or the report has not been lodged by the competent authority, or there is such other procedural flaw which may prompt the criminal Court to put an end to the (OA No.3656-2015) (31) prosecution case. Then in such circumstances acquittal will be a technical acquittal. However, in such cases of technical acquittal the prosecution may still be in a position to come back to the court after rectifying the technical flaw. But if the acquittal is after appreciation of evidence adduced against the accused, the prosecution or State cannot go back and initiate another criminal case against the accused or bring more evidence on the same charges. The learned counsel for the petitioner has not been able to demonstrate in the facts and circumstances that the acquittal of the respondent is on technical grounds, even though the criminal court had perused the evidence of all the witnesses and did not find sufficient evidence to conclude on the guilt of the respondent. The Court did not think it appropriate to rely on the testimony of the PW9 Narain Singh, one of the witnesses of the alleged recovery, in view of the other witnesses of recovery becoming hostile and not supporting the prosecution version. The prosecution did not even challenge the order of the acquittal of the respondent in appeal. No precedent has also been cited on behalf of the petitioner to establish that in such circumstances as in the case of the respondent, acquittal can be construed as a technical acquittal.
35. Consequently, the inferences on behalf of the petitioner in its order dated 17th May, 2001 invoking sub section (a) of Rule 12 of the Delhi Police (Punishment & Appeal) Rules, 1980 cannot be sustained and it cannot be held that the acquittal of the respondent was on technical grounds so as to give jurisdiction to the petitioner to re-open the departmental proceedings which were kept in abeyance on account of the pendency of the criminal case against the respondent on the same charges."
32. As such, it does not attract the provisions of Rule 12
(a). Also the competent court has nowhere opined that there is any indication that the witnesses have been won over. All the four witnesses who were examined, resiled (OA No.3656-2015) (32) from their statements given to the Police and cross- examined by the APP, as pointed out above, but, at no point of time, it transpired in the cross-examination to suggest that they have been won over. In this regard, we further rely upon the judgment in George N.S. vs. Commissioner of Police (supra). Paras 2 and 12 of the judgment are as follows;
"2. A statutory appeal against the order of Disciplinary Authority was preferred by the petitioner to the Additional Commissioner of Police under Section 23 of Delhi Police (Punishment and Appeal) Rules, 1980 (for short, he Rules") against the order dated 11th September 1999 as passed the Disciplinary Authority. The Appellate Authority maintained the order of Disciplinary Authority, recording that the appellant has already been held guilty in an enquiry under the Rules and as such there was no need to examine his case under Rule 12 of the Rules. The orders of Disciplinary Authority and the Appellate Authority were challenged before the Central Administrative Tribunal (CAT) which came to be dismissed vide the impugned order dated 22nd January 2000. While summarily rejecting the application of the petitioner, CAT observed as under:
"We have perused the order passed by the Criminal Court and we find that Ms. Licy who has been examined in the criminal court was not made available for cross examination. This was the substantial ground which has led to the acquittal of the applicant. As far as Ms. Licy is concerned, she was made available in the disciplinary proceedings. She was examined in chief and thereafter cross examined. Since the order of acquittal was passed on the ground that she had not made herself available for cross examination, the acquittal can be said to have been passed on technical grounds. Similarly, her evidence which was not available for cross examination in the criminal court was made available in the disciplinary proceedings. Hence, (OA No.3656-2015) (33) additional evidence had become available in the disciplinary proceedings. In the circumstances, the case falls under the exception carved out in clauses (a) and
(e) of Rule 12 of Delhi Police (Punishment and Appeal) Rules, 1980 which has been relied upon by the applicant in support of his contention. As far as the finding of guilt is concerned, the same is based on evidence which has been led in the disciplinary proceedings. It is impermissible for this Tribunal to re-
appreciate evidence and to come to a finding contrary to the one arrived at by the disciplinary authority."
12. The acquittal on account of prosecution failing to prove its case beyond reasonable doubt or on account of lack of evidence or no evidence cannot be termed as acquittal on technical ground. Such grounds i.e. technical ground, would be, to illustrate a few, limitation which has now been prescribed by recent amendment in Cr.P.C or trial without obtaining sanction as required under Section 197 Cr.P.C in cases where it is required and the trial being held without obtaining such sanction. If the legislature intended that acquittal on account of benefit of doubt or prosecution failing to prove a case beyond reasonable doubt etc. were not to be a bar in the departmental proceedings, it would have so specifically provided as Exception in Rule.
33. In view of the above discussions, we are of the considered view that exceptions mentioned under Rule 12
(a) and (b) of Delhi Police (Punishment & Appeal) Rules, 1980 are not applicable in this case. Having considered the applicability of Rule 12 (a) and (b) of aforementioned rules, we deem appropriate to go back to the starting para of the said Rule which reads as follows :-
"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 (OA No.3656-2015) (34) charge upon the evidence cited in the criminal case, whether actually led or not.......".
34. The issue before us is whether in the department proceeding, the inquiry was conducted on the same charge as in the criminal case or not. We have carefully gone through the summary of allegations/charges and to our mind the charge has two components (1) the applicant came in a drunken state and (2) he tried to shake hand with the complainant saying hello, followed by act of misbehavior.
35. The criminal proceeding considered the case in its entirity including the 2nd charge, which was definitely more serious and after considering the same at length the applicant was acquitted. But the fact that he was drunk has been mentioned in the criminal proceedings and, as evident from the findings of the inquiry report and counter reply, in fact the applicant himself admitted about the consumption of liquor.
36. We also find that while in the criminal proceeding 4 PWs were produced, in the departmental proceedings in addition two more PWs were there, who were examined to establish applicant's presence at the place of incident and the fact of being drunk.
(OA No.3656-2015) (35)
37. However, the learned counsel for the respondents submits that all the six witnesses were cited in the criminal proceedings as well, but the PWs mentioned above were not led.
38. Therefore, we are of the view that not only the provisions of Rule (a) and (b) do not apply in this case, but we also find that the applicant has been punished departmentally on the same set of the charge as in criminal case. Further the list of witnesses was also common in criminal and departmental proceedings though two more witnesses were not led during the criminal proceedings, who deposed against the applicant in the departmental proceedings on the charge of the applicant being under influence of liquor.
39. In view of the aforementioned facts and circumstances, the O.A. is partly allowed. The impugned orders dated 14.07.2014, 15.09.2014, 09.03.2015 and 17.07.2015 are set aside. The applicant is restored to his original position with his pay etc. and will be entitled to all consequential benefits as per relevant rules. The competent authority amongst the respondents will take necessary steps to comply with above directions as expeditiously as possible (OA No.3656-2015) (36) and preferably within 8 weeks from the date of receipt of a certified copy of this order. No order as to costs.
(Sanjeeva Kumar) (R.N. Singh) Member (A) Member (J) /kdr/