Central Administrative Tribunal - Delhi
Shaji S V vs Comm. Of Police on 18 August, 2023
1
OANo.2011/2017
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No.2011/2017
Reserved on: 31.07.2023
Pronounced on:18.08.2023
Hon'ble Mr. R.N. Singh, Member (J)
Hon'ble Mr. Sanjeeva Kumar, Member (A)
Shri Shaji S.V.
S/o Shri K. Sivanandan
R/o House No.203, Pitampura Village,
Delhi-34. ....Applicant
(By Advocate: Shri Ajesh Luthra)
Versus
1. Commissioner of Police,
PHQ, MSO Building,
IP Estate, New Delhi.
2. Joint Commissioner of Police
(Southern Range) PHQ, I.P. Estate,
New Delhi. .....Respondents
(By Advocate : Shri Amit Yadav)
ORDER
Hon'ble Mr. Sanjeeva Kumar, Member (A):
The applicant has filed the present OA under Section 19 of the Administrative Tribunals Act, 1985, seeking the following reliefs:-
"i) Quash and set aside the impugned
order dated 03/02/2017 placed at
Annexure A/1 and
2
OANo.2011/2017
ii) Direct the respondents to reinstate the
applicant in service, forthwith.
iii) Accord all consequential benefits.
iv) Award costs of the proceedings and
v) Pass any order/relief/direction(s) as This Hon'ble Tribunal may deem fit and proper in the interests of justice in favour of the applicant."
2. The facts of the case, in brief, are that the applicant while posted at PP Madipur, PS P.Bagh was detailed for Picket Duty at the residence of Sh. Sajjan Kumar, M.P. on 1994. On the same day at 3.40 p.m. he proceeded to Hindu Rao Hospital for medical treatment but neither he reported back in the Police Post nor sent any intimation upto 9 p.m. and as such he was marked absent on 19.05.1994. One Shri Ram Babu Mishra reported in the PS Sultanpuri that on the night between 18/19.05.1994 while he was sleeping in his house he heard some noise at about 1.30 a.m. On waking up, he identified the man as Shahji, his neighbor, jumping out of his house through stairs. He tried to apprehend him, but he managed to escape leaving his purse containing Identity Card, Driving License etc. on the spot which was handed over to the IO. The case was registered vide FIR No.250 dated 19.05.1994 U/s 457/380/511 IPC PS Sultan Puri and the applicant was placed under suspension and a 3 OANo.2011/2017 criminal case was registered against him. The DE was ordered against the applicant which was completed holding the applicant guilty of the charge. The disciplinary authority imposed the penalty of dismissal from service vide his order dated 16.02.1999. The applicant filed an appeal against the dismissal order which was rejected vide order dated 21.09.1999, with the rider that when the criminal case is disposed off, the appellant can once again move the authority for reconsideration. Aggrieved by the decisions of the disciplinary as well as appellate authorities, the applicant filed OA No.1775/2000 in the Tribunal which was dismissed vide order dated 31.01.2003 (Annexure R-1). Thereafter, the applicant challenged the order dated 31.01.2003 before the Hon'ble High Court of Delhi by way of WP(C) No.2028/2004 which was also dismissed vide order dated 06.04.2004.
3. The applicant was convicted in the case FIR No.250 and sentenced to undergo imprisonment of one year and a fine of Rs.4000/- vide order dated 26.03.2010 and 06.04.2010 respectively. He challenged the conviction and sentence orders in the appellate court wherein he was acquitted by the competent court vide order dated 07.01.2011 giving benefit of doubt. After his acquittal in the above criminal 4 OANo.2011/2017 case, the applicant moved a representation on 12.10.2011 against the punishment of dismissal. The appellate authority after considering the facts and circumstances of the case felt that punishment of dismissal from service awarded by the disciplinary authority was harsh and not commensurate to the gravity of misconduct. Hence the appellate authority took a decision to reinstate the applicant vide order dated 13.02.2012 and awarded the punishment of forfeiture of four years approved permanently entailing proportionate reduction in pay. The suspension period from 19.05.1994 to 15.02.1999 was also decided as period 'not spent on duty'. However, the intervening period from 16.02.1999 to the date of issue of order i.e. 13.02.2012 was decided as period spent on duty but without arrears of pay and allowances for the said period on the principle of "no work no pay". The applicant challenged the order dated 13.02.2012 before this Tribunal in OA No3543/2012 challenging the infliction of minor penalty and claiming other consequential benefits in view of this acquittal in the criminal case with the following observations:
"15. Therefore, the AA is obliged to consider the applicability and effect of the judgment of acquittal (Annexure A-4), in terms of Rule 12 ibid. The AA, however, can ignore its import on account of some exceptions contained in clauses (a) to (e) of Rule 12 ibid. The AA cannot partially accept the 5 OANo.2011/2017 judgment of acquittal for setting aside the initial punishment of dismissal from service awarded by the DA vide (Annexure A-2) order nor can ignore the import of the judgment of acquittal for imposing a fresh penalty of forfeiture of 4 years approved service permanently, on speculative and untenable grounds. The AA was required either to accept or reject the judgment of acquittal in toto and not otherwise in terms of Rule 12 of D.P. Rules. Hence, the impugned order cannot legally be sustained.
16. No other point, worth consideration, has been urged or pressed by learned counsel for the parties.
17. In the light of the aforesaid reasons and without commenting further anything on merit, lest it prejudice the case of either side during the course of subsequent hearing by the AA, the OA is partly allowed. The impugned order dated 13.02.2012 (Annexure A-1), is hereby set aside. The case is remitted back to the AA for considering the matter afresh in the light of aforesaid observations, and to pass an appropriate order in terms of Rule 12 and in accordance with law, within a period of 2 months from the date of receipt of a copy of this order."
4. In view of the aforesaid order of the Tribunal, the appellate authority after considering the facts of the case afresh passed a detailed and speaking order dated 06.10.2016 whereby appeal of the applicant against the punishment of dismissal from service was rejected. Dissatisfied with the above order dated 06.10.2016 passed by the appellate authority, the applicant filed a Contempt Petition No.563/2016 in OA No.3543/2012 in the Tribunal. 6 OANo.2011/2017 The respondents filed a compliance affidavit on 14.12.2016 in the said Contempt Petition but the Tribunal observed that the same does not constitute compliance of Tribunal's order inasmuch as the effect of Rule 12 of Delhi Police (Punishment and Appeal) Rules, 1980 has not been examined, as directed by the Tribunal. In view of facts and developments, the appellate authority passed an order dated 03.02.2017 and upheld the order dated 06.10.2016 regarding rejection of appeal of the applicant. The Tribunal after perusal the substantial compliance of the order dated 16.07.2013 passed in the Contempt Petition dismissed the Contempt Petition vide order dated 15.05.2017.
5. Subsequent to the closure of CP on 15.05.2017, the instant OA has been filed challenging the impugned order passed by the respondents on 03.02.2017 contending that the said order passed by the respondents in breach of Rule 12 of the Delhi Police (Punishment and Appeal) Rules, 1980 inasmuch as the expression 'benefit of doubt' is not covered either under 12 (b) or 12 (c) of Rule 12 of Delhi Police (Punishment and Appeal) Rules and hence the said order is bad in law and the applicant is required to be reinstated. The applicant contends that the respondents have failed to consider appropriately Rule 12 of Delhi Police (Punishment 7 OANo.2011/2017 and Appeal) Rules, 1980 as the departmental action of penalizing the applicant on the ground that acquittal is based on 'benefit of doubt' is not a ground recognized under any of the five exceptions to the said rule especially (b) and
(c) of the enumerated exception of Rule 12. Further, none of the five exceptions exists in the present case which could enable the authorities to inflict any penalty. The applicant has also submitted that though he has additionally been charged with unauthorized absence, the same cannot be a ground for major penalty as they are merely a small part of the entire allegation. More so, when for the substantial part of charges the applicant has been exonerated, just merely on the allegation of unauthorized absence where the period of unauthorized absence has also not been spelt out specifically, the impugned penalty is unsustainable.
6. The respondents through their counter have refuted the claim of the applicant to submit that the applicability of Rule 12 of Delhi Police (Punishment and Appeal) Rules, 1980 has appropriately been examined by the appellate authority pursuant to the orders dated 16.07.2016 and 11.01.2017 of the Tribunal and after due consideration orders dated 06.10.2016 and 03.02.2017 have been issued. It is further submitted that Tribunal after considering the compliance 8 OANo.2011/2017 made by the respondents dismissed the Contempt Petition on 15.05.2017. Therefore, the present OA does not subsist.
7. We have perused the pleadings on record and also heard Shri Ajesh Luthra, learned counsel for the applicant and Shri Amit Yadav, learned counsel for the respondents.
8. It is not in dispute that this Tribunal vide its order dated 11.01.2017 had ordered in CP/100/563/2016 in OA/100/3543/2012 in the applicant's case as follows:
"Learned counsel for the petitioner has argued that in purported compliance of this Tribunal's order, the respondents have passed an order dated 10.10.2016. However, the same does not constitute compliance of Tribunal's order in as much as the effect of Rule 12 of Delhi Police (Punishment and Appeal) Rules, 1980 has not been examined as was directed by this Tribunal.
Learned counsel for the respondents seeks another two weeks for filing full compliance report. List again on 01.03.2017."
9. The basic contention of the applicant that the respondents failed to consider appropriately Rule 12 of Delhi Police (Punishment and Appeal) Rules, 1980 as the departmental action of penalizing the applicant on the ground that acquittal is based on 'benefit of doubt' is not a ground recognized under any of the five exceptions to the said rule and in absence of any such exception in the 9 OANo.2011/2017 present case, the disciplinary proceedings are not in order which could enable the authorities to inflict any penalty.
10. The five exceptions of Rule 12 of the Delhi Police (Punishment and Appeal) Rules, 1980 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 has 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 disclose 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."
11. This is also not in dispute that in compliance of the Tribunal's order dated 11.01.2017 in the Contempt Petition the respondents filed a compliance affidavit on 14.03.2017 stating, inter alia, that the appellate authority once again considered the applicant's appeal in accordance with Rule 12 10 OANo.2011/2017 of the Delhi Police (Punishment & Appeal) Rules, 1980 and passed a fresh order dated 04.02.2017 rejecting the applicant's appeal. The relevant/operative part of the order dated 04.02.2017 passed by the appellate authority reads as follows:
"In compliance of orders dated 11.01.2017 passed by the Hon'ble Central Administrative Tribunal, an examination of record shows that initially the appellant was held guilty for the offence punishable under section 456 IPC and the Hon'ble Court considering relevant facts sentenced the appellant to undergo rigorous imprisonment of one year along with fine of Rs.4000/- in default to undergo simple imprisonment for one month. Thereafter in appeal, the Hon'ble Court of ASJ, Rohini, Delhi acquitted him by giving benefit of doubt vide order dated 07.01.2011. I have examined the acquittal order dated 07.01.2011 in terms of Rule-12 of Delhi Police (Punishment & Appeal) Rules, 1980. As the main prosecution witnesses changed their track while deposing before the Hon'ble Court, after giving benefit of doubt, the appellant was acquitted in the instant case. As such the matter attracts the provisions of clause (b) & (c) of Rule 12 of the Delhi Police (Punishment & Appeal) Rules, 1980. Since the acquittal was granted on benefit of doubt, I am of the considered view that the appellant is directly responsible for the lapse, for which a departmental enquiry was conducted against him. The pleas advanced by the appellant in his appeal against dismissal have no merit as he had miserably failed in maintaining proper conduct and decorum required in a disciplined department. Hence the punishment awarded by the disciplinary authority is commensurate to the misconduct committed by the appellant. The order regarding rejection of appeal issued vide No.2039- 44/P.Sec.SWR(SI-A) dated 06.10.2016 holds good and require no further intervention."11 OANo.2011/2017
12. The said compliance order was placed before the Tribunal and the Tribunal after due consideration disposed off this CP vide its order dated 15.05.2017 as follows:
"3. The Tribunal had disposed of the said O.A.No.3543 of 2012, vide order dated 16.7.2016, the relevant/operative part of which is reproduced below:
15. Therefore, the AA is obliged to consider the applicability and effect of the judgment of acquittal (Annexure A-4), in terms of Rule 12 ibid. The AA, however, can ignore its import on account of some exceptions contained in clauses (a) to (e) of Rule 12 ibid. The AA cannot partially accept the judgment of acquittal for setting aside the initial punishment of dismissal from service awarded by the DA vide (Annexure A-2) order nor can ignore the import of the judgment of acquittal for imposing a fresh penalty of forfeiture of 4 years approved service permanently, on speculative and untenable grounds. The AA was required either to accept or reject the judgment of acquittal in toto and not otherwise in terms of Rule 12 of D.P. Rules. Hence, the impugned order cannot legally be sustained.
16. No other point, worth consideration, has been urged or pressed by learned counsel for the parties.
17. In the light of the aforesaid reasons and without commenting further anything on merit, lest it prejudice the case of either side during the course of subsequent hearing by the AA, the OA is partly allowed.
The impugned order dated 13.02.2012 (Annexure A-1), is hereby set aside. The case is remitted back to the AA for considering the matter afresh in the light of aforesaid observations, and to pass an appropriate order in terms of Rule 12 and in 12 OANo.2011/2017 accordance with law, within a period of 2 months from the date of receipt of a copy of this order.
x x x x x x x x x x
8. In the above view of the matter, it can by no stretch of imagination be said that the respondents have disobeyed the Tribunal's order dated 16.7.2016(ibid). Therefore, no case of contempt of this Tribunal is made out against the respondents.
9. Resultantly, the Contempt Petition is dismissed, and the notices issued against the respondent-opposite parties are discharged. No costs."
The aforesaid order of the Tribunal was in the context of the compliance filed in the relevant CP wherein the Tribunal had directed the respondents to examine the effect of Rule 12. As follows from Para 3 (17) of order, the Tribunal did not have the occasion to go into the merit of the case or correctness of application of Rule 12 of Delhi Police (Punishment & Appeal) Rules, 1980 or otherwise. The respondents complied with the same passing an order in compliance with Rule 12 and thus the contempt was closed. The issue before us is different as the applicability of the exceptions mentioned at (b) and (c) of Rule 12, based on which the appellate authority has passed the impugned order has been questioned by the applicant. 13 OANo.2011/2017
13. It is also not in dispute that the appellant was initially dealt with departmentally on charges flowing from the criminal case and also on account of unauthorized absence. The charges were proved against him during the departmental proceedings and he was awarded the punishment of dismissal vide order dated 16.02.1999 but once he was acquitted of criminal charges by the competent judicial court, it was incumbent upon the appellate authority to reconsider the appeal in the light of the acquittal dated 07.01.2011 of the appellate court.
14. In this regard, we have perused the previous order dated 13.02.2012 i.e. the first order of the then appellate authority which categorically admits that the applicant has been acquitted by the appellate court by giving benefit of doubt which amounts to complete acquittal. It also states that the case does not fall within the ambit of Rule 12 of the Delhi Police (Punishment & Appeal) Rules, 1980 justifying the departmental proceedings. The said order further says that the charge served upon the applicant during DE proceedings contained allegations of absence. It is clear that the point of consideration before the appellate authority was alleged unauthorized absence of the applicant and the charge served upon the applicant during DE proceedings 14 OANo.2011/2017 contained allegations of his absence also. Therefore, after considering the facts and circumstances of the case, the appellate authority after a comprehensive analysis arrived at the conclusion that dismissal awarded by the disciplinary authority was harsh and incommensurate to the gravity of the applicant's misconduct. Since the applicant was acquitted in the criminal case and neither of the five exceptions under Rule 12 was attracted, he could not have been punished on the same charge as in the criminal case. In fact, the only surviving charge against the applicant was unauthorized absence. While reinstating him, therefore, he was awarded the punishment of forfeiture of four years permanently. It was also stipulated that the suspension period from 19.05.1994 to 15.02.1999 was also to be treated as period 'not spent on duty' and intervening period from 16.02.1999 to the date of issue of the order of the appellate authority was to be treated as spent on duty but without pay and allowances. We find logic in the view taken by the then appellate authority that the case was not covered by the relevant provisions of Rule 12 of the Delhi Police (Punishment & Appeal) Rules, 1980. However, the impugned order of the appellate authority states that the matter attracts the provisions of clause (b) and (c) of Rule 15 OANo.2011/2017 12 of the Delhi Police (Punishment & Appeal) Rules, 1980, as the acquittal was after giving benefit of doubt to the applicant. The two exceptions mentioned under (b) and (c) of said Rule 12 are reproduced again for ready reference:
"(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 has held in its judgment that an offence was actually committed and that suspicion rests upon the police officer concerned"
15. In the pleadings, there is nothing to indicate that the prosecution witnesses have been won over or the court was of the view that the offence was actually committed and that suspicion rests upon the police officer concerned, as stipulated above in clause (b) and (c) of the said rule. Therefore, the first order of appellate authority was right in observing that the case was not within the purview of Rule 12 of the Delhi Police (Punishment & Appeal) Rules, 1980. Bereft of five exceptions under Rule 12 more particularly clause (b) and (c), the disciplinary proceedings could have drawn sustenance only from the charge of absence of the applicant, as noted by the appellate authority's first order. Since it did not call for an extreme penalty of dismissal, as such considering the facts and circumstances of the case, 16 OANo.2011/2017 the first appellate order reduced the punishment imposed on the applicant and he was reinstated in the service.
16. Therefore, we find that the penalty of dismissal from service imposed upon him vide impugned order is disproportionate, more so when the applicant's case does not fall within the five exceptions under Rule 12 which could have enabled the respondents to punish him departmentally on the charges against him in the criminal case.
17. We are conscious our limitation and recognize that the Tribunal or courts normally should not interfere with the penalty imposed, as this is the sole discretion and prerogative of the relevant disciplinary and appellate authority but at the same time if such a penalty is contrary to the facts and circumstance, as reflected in the first order of the appellate authority, it is incumbent upon us to interfere. Therefore, the impugned order is set aside and we remit the matter back to the said authority with a clear direction to review the entire disciplinary proceedings against the applicant and take a decision afresh in the matter with the condition that if they decide to impose a fresh penalty upon the applicant, they shall be at liberty to impose any penalty other than the penalty of dismissal or 17 OANo.2011/2017 removal from service. The said direction shall be complied with within a period of 8 weeks from the date of receipt of a certified copy of this order. The applicant will be entitled to all consequential benefits, if the circumstances so arise, in accordance with law.
18. The O.A. stands disposed of in the aforesaid terms.
19. There shall be no orders as to costs.
(Sanjeeva Kumar) (R.N. Singh) Member (A) Member(J) /kdr/