Central Administrative Tribunal - Delhi
Devendra Kumar vs Comm. Of Police on 26 April, 2019
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI
O.A. No.2174 of 2015
Orders reserved on 23.04.2019
Orders pronounced on 26.04.2019
Hon'ble Ms. Nita Chowdhury, Member (A)
Hon'ble Mr. S.N. Terdal, Member (J)
Devendra Kumar,
SI (Ex.) in Delhi Police,
PIS No.16080430
Aged about 33 years
s/o Sh. Kishore Kumar
r/o Opposite Bada Gaon Gate,
Maha Kaleshwar Mandir,
Jhansi, U.P.
....Applicant
(By Advocate : Sh. Anil Singal)
VERSUS
1. Govt. of NCT of Delhi
Through Commissioner of Police,
PHQ, IP Estate, New Delhi.
2. D.C.P. (South-East Distt)
PS Sarita Vihar, New Delhi.
3. ACP Umesh Singh (E.O)
Through D.C.P. (South-East Distt)
PS Sarita Vihar, New Delhi.
.....Respondents
(By Advocate : Ms. Sangita Tomar)
ORDER
Ms. Nita Chowdhury, Member (A):
By filing this OA, the applicant is seeking the following reliefs:-
"(a) Call for the records of the case and set aside/quash the Order dt.30.12.2014 (Annexure A-1) and Summary of Allegations (Annexure A-2) and/or direct the respondents to keep in abeyance 2 the departmental enquiry initiated vide order dt.30.12.2014 during the pendency of the criminal case till the defense of the applicant is disclosed in the criminal case.
Or alternatively Direct the respondents to defer the cross-
examination of Sh. Sagar Mehra and ACP Jasvir Singh till his examination before the concerned Court in the criminal case on the same charges.
(b) To award costs in favour of the applicant and
(c) To pass any order or orders which this Hon'ble Tribunal may deem just an equitable in the facts and circumstances of the case."
2. Facts of the case, in brief, are that the applicant is holding the post of SI (Exe.) in Delhi Police. He was booked in criminal case FIR No.977/14 dated 25.10.2014 under Section 7/13 Prevention of Corruption Act, PS Anti Corruption Branch, Govt. of NCT of Delhi, and he was arrested on 25.10.2014 but later on released on bail on 8.12.2014. On having been arrested in the said criminal case, the applicant was placed under suspension vide order dated 26.10.2014. 2.1 The respondents have initiated departmental enquiry against the applicant vide order dated 30.12.2014 (Annexure A1) under the provisions of Delhi Police (Punishment & Appeal) Rules, 1980 on the allegations as under:-
"It is alleged against SI (Exe.) Devendra Kumar, No.D/4410 (PIS No.16080430) that while posted at PS Kalkaji, he was deployed for duty as Emergency Officer from 8:00 AM on the intervening night of 19/20.10.2014. He was entrusted a PCR call vide DD 3 No.33A regarding road accident in front of 35/946, DDA Flats, Kalkaji, New Delhi. A case vide FIR No.962/2014 dated 20.10.2014 u/s 279/337 IPC was got registered by SI (Exe.) Devendra Kumar at PS Kalkaji on the complaint/statement of injured Arjun Bahadur S/O Late Shri Ganesh Chaudhary R/o Village Amnaur Panchayat, PS Hathauri, Muzzafarpur, Bihar, aged 42 years. He arrested the accused namely Vipin S/O Late Shri Om Prakash R/O A-472, Tikadi Colony, New Delhi and released on bail.
On 24.10.2014, a complaint made by Shri Sagar Mehar S/o Late Shri Om Prakash R/O J-244, Saket, New Delhi (Mobile No. 9971196012) was received at PS Kalkaji by post (complaint Dy. No.1752-GC/SHO Kalkaji dated 2410.2014). The Compact Disk also enclosed with this complaint. The complainant alleged that SI Devendra Kumar had demanded and accepted Rs.10,000/- as briber for diluting the case and releasing his brother on bail on 20.10.2014.
On watching the CD which was enclosed with the above complaint, SI Devendra Kumar is seen taking money from some person for carrying out favourable proceedings for accused Vipin in the above case. On the basis of above allegations, a case vide FIR No.977/2014 dated 25.10.2014 U/S 7/13 POC Act was registered at PS Kalkaji against SI Devendra Kumar and he was arrested in this case.
For the above misconduct, SI (Exe.) Devendra Kumar, No.D/4410 has been placed under suspension w.e.f. 25.10.2014 vide DD No.14A dated 26.10.2014 PS Kalkaji read with this office order No. 12999- 13020/HAP/SED(P-1) dated 28.10.2014.
The above act on the part of SI (Exe.) Devendra Kumar, No.D/4410 amounts to grave misconduct, negligent and unbecoming of a police officer which renders him liable to be dealt with departmentally under the provisions of Delhi Police (Punishment & Appeal) Rules, 1980 read with Sec.-21 of D.P. Act, 1978.""
2.3 Feeling aggrieved by the aforesaid action of the respondents, the applicant has approach this Tribunal by filing the instant OA challenging the order dated 30.12.2014 4 (Annexure A-1) and summary of allegations (Annexure A-2) and this Tribunal, vide ad interim order dated 16.6.2015 passed in this OA, directed the respondents not to proceed with the DE till the next date of hearing.
2.4 The grounds to challenge the said order as raised by the applicant in this OA are that (i) the charge-sheet is not in conformity with law; (ii) the charges discloses bias or pre- judgment of the guilt of the applicant; (iii) there is total non- application of mind in issuing the charge-sheet; (iii) the chargesheet does not disclose any misconduct against the applicant; (iv) the charges are vague and are lacking in material particulars; (v) the charge-sheet has been result of mala fide; (vi) the case registered against the applicant is not a trap case where he was caught red-handed taking bribe. Thus, there is no evidence of demand and acceptance or recovery of any money on the part of the applicant, as the said case was solely registered on the basis of a copy of CD of so-called sting operation and according to the applicant, original recordings, memory devices containing original recordings and the instruments used in alleged recordings are not available with the department rather it is better to say that even as per the department, the original does not exist as on date, which is evident from the fact that no such material has been provided with the summary of allegations. Therefore, the present case being based on no evidence is 5 liable to be set aside. In support of his contention, learned counsel placed reliance on the decision of this Tribunal in OA No.4097/2011 decided on 3.12.2012; (vi)
3. The respondents have also filed their counter affidavit stating therein that the parallel DE against the applicant has been initiated rightly as held by this Tribunal in OA No.4362/10 - SI Rajesh Kumar vs. CP, Delhi & Ors. decided on 4.1.2011, wherein this Tribunal has held that :
"There is no bar for simultaneously proceeding against a police officer criminally and departmentally, as has been held by this Tribunal on number of occasions. The only exception for simultaneous proceedings may be when the questions of law and facts involved in the matter are highly complicated. In that event only the departmental proceedings are to await decision of the criminal trial. Such is not a case in hand. The applicant has indeed been held guilty and punished as well. The criminal proceedings may take years together before they culminate into an order of conviction or acquittal. If the plea of the applicant is to be accepted, then in that case police officers involved in heinous crimes, or corruption, which too is extremely serious, will remain on the rolls of police all the while the criminal proceedings may remain pending against them. In fact, in cases as the one in hand, it is desirable that both criminal and departmental proceedings are resorted to simultaneously. It will serve a dual purpose. If the delinquent is found to be innocent in the departmental proceedings that may be held against him, it would be better for him to have the verdict as early as possible, as surely, till such time he may face the departmental proceedings, he will be looked down upon by everyone. If, however, he is found guilty, he has to be shown the exit door as early as possible."
3.1 They further stated that the respondents have initiated DE proceedings in pursuance of the impugned Annexure A-1 6 but the same has been stayed by this Tribunal vide Order dated 16.6.2015.
3.2 They also stated that the original recording and equipment, CD and voice samples of witness were went to FSL Rohini, Delhi for examination on 24.4.2015 and as such the contention of the learned counsel for the applicant that original recording or equipment are not available is not sustainable. They also stated that in compliance of the aforesaid interim order, the respondents have not proceeded further in the said D.E. proceedings.
4. The applicant has not chosen to file any rejoinder in this matter as no rejoinder is on record.
5. We heard learned counsel for the parties and carefully perused the material placed on record.
6. During the course of arguments, learned counsel for the applicant mainly argued that this case is squarely covered by the judgment of the Apex Court in the case of Capt. M.Paul Anthony vs. Bharat Gold Mines Ltd, 1999 (2) 456 and also in the case of Firoz Ahmed vs. Union of India decided by Hon'ble Calcutta High Court, 2014 (4) SLR 16 (Cal.), as it is a well settled position in law that on basic principles proceedings in criminal case and departmental proceedings can go on simultaneously, except where the departmental 7 proceedings and criminal case based on same set of facts and the evidence in both the proceedings is common,. 6.1. Counsel for the applicant submitted that D.E. proceedings initiated vide order dated 30.12.2014 is liable to be kept in abeyance till the finalization of the criminal case in the interest of natural justice. However, the enquiry officer illegally issued the summary of allegations to the applicant despite the fact that the allegations in D.E. proceedings as well as in criminal proceedings are same and material witnesses as well as material to be relied upon by the authorities are also same. Therefore, initiation of the departmental action against the applicant by order dated 30.12.2014 on the basis of same set of allegations, which are subject matter of trial before the criminal court is not justified at all. He further submitted that if the applicant is forced to join the D.E. proceedings, he is bound to suffer an irreparable loss and injury which will ultimately prejudice his defense in criminal case that is pending investigation, as in terms of provisions of Delhi Police (Punishment & Appeal) Rules, the applicant will be compelled to disclose his defense while cross-examining Shri Sagar Mehra (Complainant) and ACP Jasvir Singh, which will seriously prejudice his defense in the criminal case. Even otherwise, the allegations made against the applicant in the criminal case as well as in the departmental enquiry are serious one involving complicated 8 question of law as well as facts. Therefore, it will be in the interest of justice that the respondents must wait for the decision of criminal court since otherwise, if the applicant is honourably acquitted in criminal case, he will have no remedy.
6.2 Counsel for the applicant further emphasized that D.E. proceedings are based on the fabricated CD made by the complainant, therefore, the present enquiry is liable to be set aside.
6.3 Counsel for the applicant further submitted that the said criminal proceedings are now at the final stage and conclusion in the said criminal case will be arrived very soon. Therefore, he prayed that D.E. proceedings initiated vide impugned orders may kindly be quashed and set aside in the interest of justice.
7. On the other hand, learned counsel for the respondents submitted that the original recording and equipment, CD and voice samples of witness were sent to FSL Rohini, Delhi for examination on 24.4.2015 and as such the contention of the learned counsel for the applicant that original recording or equipment are not available is not correct. 7.1 Counsel also submitted that the parallel D.E. proceedings against the applicant has been initiated rightly as while delivering the judgment by this Tribunal in OA 4362/10 9 (SI Rajesh Kumar vs. CP, Delhi and others) decided on 4.1.2011.
7.2 Counsel for the respondents submitted that there is no bar for simultaneously proceeding against the applicant in criminally and departmentally, as has been held by this Tribunal on number of occasions. The only exception for simultaneous proceedings may be when the questions of law and facts involved in the matter are highly complicated. In that event only the departmental proceedings are to await decision of the criminal trial. Such is not a case in hand. The criminal proceedings may take years together before they culminate into an order of conviction and acquittal. Counsel for the respondents further submitted that the present case does not involved complicated facts.
8. In the case of Avinash Sadashiv Bhosale v. Union of India [(2012) 13 SCC 142], the Hon'ble Supreme Court held that there is no legal bar for both proceedings to go on simultaneously. The only valid ground for claiming that the disciplinary proceedings may be stayed would be to ensure that the defence of the employee in the criminal case may not be prejudiced but even such grounds would be available only in cases involving complex question of fact and law. Such defence ought not to be permitted to unnecessarily delay the departmental proceedings. The interest of the delinquent 10 officer as well as the employer clearly lies in a prompt conclusion of the disciplinary proceedings. We are also of the view that this case also not involved any complex question of fact and law.
9. It is also to note that acquittal in criminal proceedings on the same set of charges, per se, does not entitle the delinquent to claim immunity from disciplinary proceedings, as observed by the Supreme Court in the case of C.M.D.U.C.O. vs. P.C.Kakkar, AIR 2003 SC 1571. In the same way, departmental proceedings may be continued even after retirement of the employee. (U.P.S.S.Corp.Ltd. vs. K.S.Tandon, AIR 2008 SC 1235).
10. Considering the above judgments, this Court is of the firm opinion that the procedure for taking disciplinary action against a Government servant is lengthy and detailed one, giving maximum opportunity to the government servant to prove his innocence. A Government employee is expected to perform his duties with utmost diligence, efficiency, economy and effectiveness. The Government procedures are lengthy in order to ensure that the Government employees perform their responsibilities without any pressure or exterior considerations. However, at the same time, it ensures discipline amongst the employees and shows the door to the employees who have become dead wood and do not perform 11 as per expectations of public in general and his department in particular. Disciplinary proceedings are conducted to ensure that the morale of the employees as a whole is boosted. It ought to be noted that criminal proceedings will last for years and this can lead to loss of evidences and thereby staying departmental disciplinary proceedings from being conducted simultaneously would lead to gross miscarriage of justice. Also, it is pertinent to note the fact that the object of such departmental proceedings is not to penalise but to assist in restoring the morale of Government servants. Thus, it is of utmost importance that the Court has to strike a balance between the need for a fair trial to the accused on one hand and the competing demand for an expeditious conclusion of the ongoing disciplinary proceedings on the other which will not have any adverse impact if is conducted simultaneously.
11. The cases cited by the applicant supra are distinguishable on facts and as such the same are not applicable to the facts of the present case.
12. In the result, we observe that it is impossible for the Tribunal to adjudicate at the stage of issuance of summary of allegations whether it is correct or motivated. The truth can be ascertained only by the departmental authorities if the departmental action is allowed to proceed unimpeded and as 12 such the present OA is accordingly dismissed. However, we expect that the respondents will proceed in the departmental enquiry initiated against the applicant as per the procedures prescribed for this purpose and the applicant is also directed to cooperate in the departmental enquiry proceedings.
13. Accordingly, interim order granted earlier stands vacated. There shall be no order as to costs.
(S.N. Terdal) (Nita Chowdhury) Member (J) Member (A) /ravi/