Central Administrative Tribunal - Delhi
Hari Kishan vs Comm. Of Police on 22 May, 2019
Central Administrative Tribunal
Principal Bench
OA No.3618/2013
with
OA No.177/2018
MA No.190/2018
New Delhi, this the 22nd day of May, 2019
Hon'ble Mr. Justice L. Narasimha Reddy, Chairman
Hon'ble Ms. Aradhana Johri, Member (A)
I. OA No.3618/2013
1. ASI Hari Kishan,
S/o Late Sh. Chuttanlal,
R/o H.No. 31/30, Block-A-1,
Sant Nagar, Burari, Delhi.
2. Constable Ravinder Singh No.1601/T,
S/o Sh. Yad Ram Singh Panwar,
R/o Village Sunehara,
Distt. Baghpat, UP.
...Applicants
(By Advocate : Shri M.K. Bhardwaj)
Versus
Commissioner of Police & Ors. through :
1. The Commissioner of Police,
PHQ, MSO Building,
IP Estate,
New Delhi-02.
2. The Addl. Commissioner of Police (PCR),
Police Headquarter, Delhi.
3. The Dy. Commissioner of Police Traffic (NDR),
Delhi.
...Respondents
(By Advocate : Ms.Esha Mazumdar for Ms. Sangita Rai
and Shri Amit Yadav )
2
OA No.3618/2013
With
OA No.177/2018
II. OA No.177/2018
1. Hari Kishan, ASI, Group 'C',
ASI No.5228/PCR, PIS No.28821370,
Aged about 56 years,
S/o Late Sh. Chuttanlal,
R/o H.No. 31/30, Block-A-1,
Sant Nagar, Burari, Delhi.
2. Ravinder Singh, Constable, Group 'C',
No.2033/PCR, PIS No.28932674,
Aged about 46 years,
S/o Sh. Yad Ram Singh Panwar,
R/o Village Sunehara,
Distt. Baghpat, UP.
3. Ram Kishore, Constable, Group 'C',
No.1928/PCR, PIS No.28012245,
Aged about 31 years,
S/o Sh. Ghotu Ram,
R/o V&PO Ladli Ka Baas,
P.S. Nagal Rajaoutaan,
Distt. Dosa, Rajasthan.
...Applicants
(By Advocate : Shri M.K. Bhardwaj)
Versus
1. The Commissioner of Police,
PHQ, MSO Building,
IP Estate,
New Delhi-02.
2. The Addl. Commissioner of Police (Ops),
Police Headquarter, I.P. Estate,
Delhi.
3. The Dy. Commissioner of Police (PCR),
Model Town,
Delhi.
...Respondents
(By Advocate : Ms.Esha Mazumdar for Ms. Sangita Rai
and Shri Amit Yadav.)
3
OA No.3618/2013
With
OA No.177/2018
ORDER (ORAL)
Justice L. Narasimha Reddy, Chairman :-
These two OAs are filed by the same individuals, namely, Mr. Hari Kishan, ASI and Mr. Ravinder Singh, Constable. In addition to them, one Mr. Ram Kishore, Constable is the applicant in OA No.177/2018. Since both the OAs are interlinked, they are disposed of through a common order.
2. On 20.12.2008, a complaint was received to the effect that Mr. Ravinder Singh, the 2nd applicant herein, demanded and accepted Rs.400/- in the name of entry of one month of his TSR No.DL-RL-2245, in the presence of the first applicant herein. It was alleged that the amount was received after signal from the 1st applicant. Some other allegations as to the demand and acceptance of bribe were also made against some other officials of the Delhi Police. The statement of the complainant was recorded u/s 161 Cr.PC. Accordingly, an FIR No.45/08 dated 20.12.2008 u/s 7/8/13 POC r/w 120-B IPC, was registered in the PS A.C. Branch, GNCT, Delhi. The 4 OA No.3618/2013 With OA No.177/2018 applicants herein, were shown as accused and were arrested on 20.12.2008.
3. Disciplinary proceedings were initiated against applicants No.1&2, by issuing the summary of allegations. Witnesses were examined, and charges were framed. During the pendency of the disciplinary proceedings, the applicants filed OA No.2823/2009. It was pleaded that the disciplinary proceedings become untenable in view of the initiation of the proceedings, before the Criminal Court, on the same allegations. The plea was not accepted and the OA was disposed of, however, directing that the disciplinary proceedings be deferred for a period of one year.
4. After expiry of one year, the proceedings were resumed and on the basis of the report submitted by the Inquiry Officer, the Disciplinary Authority (for short, DA) passed an order dated 14.02.2012, imposing the punishment of forfeiture of five years of approved service permanently, against applicants No.1&2. The appeal preferred against the order of punishment was rejected by the Appellate Authority, on 20.09.2013. OA 5 OA No.3618/2013 With OA No.177/2018 No.3618/2013 is filed challenging the order of punishment, as approved by the Appellate Authority.
5. The Criminal Court, which tried the applicants and others in relation to FIR No.45/08, rendered its judgment on 13.12.2014, convicting the three applicants in OA No.177/2018, for the offence punishable U/S 120-B of IPC r/w Section-7, 8 & 13 of the PC Act and sentenced them to undergo rigorous imprisonment for 1 ½ year, and to pay fine of Rs.10,000/- each. It is stated that the applicants filed an appeal before the Hon'ble Delhi High Court, feeling aggrieved by the sentence. The DA took note of the conviction and sentence order against the applicants, by the Criminal Court, and passed order dated 04.03.2015, exercising the power conferred by sub rule (1) of Rule 11 of Delhi Police (Punishment & Appeal) (Amendment) Rules, 2011, dismissing them from service. The appeal preferred against the same was rejected by the Appellate Authority on 09.01.2017. The OA No.177/2018 is filed against that order.
6. The applicants contend that the order dated 14.12.2012 cannot be sustained in law, since the 6 OA No.3618/2013 With OA No.177/2018 disciplinary proceedings were conducted even while the criminal case was pending and hardly there was any evidence to prove the allegation. As regards the order of dismissal, it is stated that it suffers from the vice of double jeopardy, prohibited under the Constitution of India. It is pleaded that with reference to the same incident, they have been subjected to three punishments, namely, forfeiture of five years approved service, dismissal from the service by the DA and conviction and sentence of imprisonment and fine by the Criminal Court. They contend that once the disciplinary proceedings were initiated with reference to same allegations, there was no basis for passing the order of dismissal. It is pleaded that the said order is contrary to Rule 11(3) of the Delhi Police (P&A) Rules, 1980.
7. On behalf of the respondents, separate counter affidavits are filed, opposing the OA. It is stated that the allegations against the applicants are grave in nature and the criminal proceedings before the Court of Law on the one hand, and disciplinary proceedings on the other, were carried out separately. It is also stated that the Inquiry Officer found the charge against the applicants as 7 OA No.3618/2013 With OA No.177/2018 proved and accordingly, the punishment of forfeiture of five years approved service was imposed .
8. As regards the conviction by the Criminal Court, it is stated that it was in relation to the offence involving moral turpitude and accordingly, the power conferred upon the DA under Rule 11(1) was exercised. Reliance is placed upon the judgment of Hon'ble High Court in Tariq Ali Khan Vs. Govt. of NCT of Delhi & Others WP(C) No.1921/2015 and Mahender Singh Vs. Govt. of NCT of Delhi & Ors. WP(C) No.301/2012 and order of this Tribunal in OA No.1155/2013 ASI Dalip Pawar Vs. Govt. of NCTD & Ors. .
9. We heard Shri M.K. Bhardwaj, learned counsel for applicant and Ms. Esha Mazumdar for Ms. Sangita Rai, and Shri Amit Yadav, learned counsel for respondents.
10. A complaint was received against the applicants herein, alleging that they demanded and accepted illegal gratification. The complaint was examined, and the statement of the complainant was recorded u/s 161 Cr.PC. Thereafter, an FIR was registered u/s 7/8/13 8 OA No.3618/2013 With OA No.177/2018 POC r/w 120-B IPC. On the departmental side, charge memo was issued to the applicants on 05.06.2012. The relevant portion thereof reads as under:
"CHARGE I, Baljeet Singh, ACP/EO/DE Cell charge you, ASI Hari Kishan, No.2512/T, Const. Ravinder Singh, No.1601/T and Const.
Ram Kishore, No.4236/T that on 20.12.2008, one Shri Karnail Singh s/o Shri Nannu Singh r/o E-5/1 Dayal Pur, Main Road, E Block Rajiv Gali, Delhi- 110094 had made a written complaint against the officers of Delhi Traffic Police & Delhi Police namely ASI Hari Kishan No.2512/T, Const. Ravinder Singh No.1601/T, Const. Ram Kishore No.4236/T, SI Vijender No.D/3993 and Sh. Rashid, a private person acting as a tout regarding demanding and accepting bribe to run the TSR (APE) without challan vide which the complainant had alleged that on 12.11.08, Sh. Rashid (tout) had demanded Rs.2200/- per month for running his 2 U.P. number TSR and on 21.11.08 you, Const. Ravinder Singh had demanded & accepted Rs.400/- in the name of entry money for one month of his TSR No.DL- 1RL-2245 in the presence of ASI/ZO Hari Kishan and you ASI Hari Kishan had made a signal to Const. Ravinder to accept the said amount from the complainant. On 27.11.2008 you Const. Ram Kishore, No.4236/T had also demanded Rs.500/- per month as entry money in the name of T.I. On the said complaint, case FIR No.45/08 dated 20.12.08 u/s 7/8/13 POC Act read with 120 B IPC, PS A.C. Branch, GNCT of Delhi was registered and you, ASI Hari Kishan, Const. Ravinder Singh and 9 OA No.3618/2013 With OA No.177/2018 Const. Ram Kishore were arrested in the case. One diary & 2 papers were seized from the possession of you, Ct. Ravinder Singh No.1601/T which indicate the entries of Sh. Karnail Singh, Bhajanpura, Delhi i.e. his vehicle No.2245 (APE), details of U.P. Nos. autos at Khajuri, other vehicle Nos. and amount of money . Accused Rashid (Tout) s/o Mohd. Yunash r/o H.No. 301/A, D-Block, Gali No.2, Karawal Nagar, Delhi-
94 was arrested on 05.01.09 from whom (i) One pocket diary in which No. of TSRs were written on one page. (ii) One paper on which numbers of different vehicles and amount was written. (iii) On the back side of visiting card, five mobile Nos. and name of the persons was written. (iv) On the back side of one Cavander Gold Flake cigarette slip, details of 14 vehicles and amount collected from their owners/drivers were written, were seized."
11. On receipt of this charge memo, the applicants approached the Tribunal by filing O.A. No. 2823/2009. Their plea was that the allegations contained in the charge in the disciplinary proceedings on the one hand, and the proceedings before the Criminal Court on the other, are one and the same, and if the departmental proceedings are permitted to go on, they would be compelled to disclose their defence in the criminal case. The Tribunal had adopted a middle way and disposed of the OA, directing that the disciplinary proceedings be kept on hold for a period of one year. On expiry of one 10 OA No.3618/2013 With OA No.177/2018 year, the departmental proceedings were resumed and the Inquiry Officer submitted his report, holding the charges as proved. The DA passed an order imposing the punishment of forfeiture of five years of approved service on the applicants No. 1& 2.
12. Though, it is pleaded that the proceedings were vitiated on account of the pendency of the criminal case, we are not inclined to accept the same. That plea was dealt with by the Tribunal in O.A. No. 2823/2009 and the applicants cannot repeat that ground at this stage. Further, on perusal of the order, we find that no serious procedural lapse has taken place and having regard to the nature of the charges, that were held proved, the punishment cannot be treated as disproportionate or on the higher side. We do not find any merit in OA No.3618 of 2013.
13. The criminal case ended against the three applicants. In its judgment dated 13.12.2014, the Trial Court held that the charge referable to Section - 7, 8 and 13 of the PC Act is not held proved, but the one referable to Section - 120-B of IPC r/w Sec-7, 8 and 13 of the PC 11 OA No.3618/2013 With OA No.177/2018 Act is held as proved. The relevant portion reads as under:
"16. For the reasons stated in paras nos.-9 to 15, I am of the opinion that all accused persons are entitled to benefit of doubt and they are acquitted of the charge for offences punishable u/sec.-7,8 & 13 of the PC Act. Accused persons ASI Hari Kishan, Ct. Ravinder, Ct. Ram Kishore and Mohd. Rashid are convicted of the offence punishable u/sec.-120-B of IPC r/w/sec.-7,8 & 13 of the PC Act. Accused SI Vijender Pal Singh is, however, acquitted of the offence punishable u/sec.-120-B of IPC, also. However, in terms of sec.-437(A) Cr.P.C., accused SI Vijender Pal Singh is directed to furnish bail bond for the amount of Rs.25,000/- with one surety in the like amount, along with latest passport size photographs and residential proof, to appear before the revisional/appellate court, as and when, any such notice is issued in respect of any revision appeal, which may be filed against this order. Ordered accordingly."
14. The punishment of imprisonment of 1 ½ year and fine of Rs. 10,000/- on each of the applicants, was imposed.
15. Rule 11 of the Delhi Police (Punishment and Appeal) Rules, 1980 reads as under:
12OA No.3618/2013
With OA No.177/2018 "11. Punishment on judicial conviction.-(1) When a report is received from an official source, e.g. a court or the prosecution agency, that a subordinate rank has been convicted in a criminal court of an offence, involving moral turpitude or on charge of disorderly conduct in a state of drunkenness or in any criminal case, the disciplinary authority shall consider the nature and gravity of the offence and if in its opinion that the offence is such as would render further retention of the convicted police officer in service, prima facie undesirable, it may forthwith make an order dismissing or removing him from service without calling upon him to show cause against the proposed action...
(2) If such police officer is acquitted on second appeal or revision, he shall be reinstated in service from the date of dismissal or removal and may be proceeded against departmentally.
(3) In cases where the dismissal or removal from service of the convicted police officer is not considered necessary, the disciplinary authority may examine the judgment and take such departmental action as it may deem proper.
(4) When a police officer is convicted judicially and
consequentially dismissed or removed from service, and it is desired to ensure that the officer dismissed or removed shall not be re-employed elsewhere, a full descriptive roll with particulars of punishments, shall be sent for publication in the Delhi Police Gazette."
13OA No.3618/2013
With OA No.177/2018
16. The Rule provides for imposition of punishment against the officials of the Delhi Police, in the event their being convicted by the Court of Law, for the offences involving moral turpitude. The DA is given right to decide whether or not to impose the major penalty and to take the decision, depending upon the gravity of the charge. In the case of the applicants, the punishment of dismissal from service was imposed, by taking the view that the charge held proved against the applicants is serious in nature and involves moral turpitude.
17. The principal contention raised by the applicants is that the punishment of dismissal constitutes the second one, in view of the earlier order of forfeiture of five years of approved service and that the same is impermissible in law. By making reference to sub-rule 3, it is stated that the imposition of punishment of dismissal or any lesser punishment, by taking recourse to Sub-rule 3, is alternative and both cannot be imposed against the one and the same person. We find it difficult to accept the contention. The reason is that the punishment of forfeiture of five years approved service against applicants No.1&2, was on the basis of departmental proceedings, is 14 OA No.3618/2013 With OA No.177/2018 pure and simple. They have no flavour or connection with criminal case.
18. Rule 11 comes into play only when a police official has been convicted by a Criminal Court for an offence involving moral turpitude, and it does not exclude the imposition of punishment, in case, the departmental proceedings were initiated separately, in relation to the same incident or allegations. The Hon'ble Supreme Court dealt with almost similar situation in its judgment in State of Haryana vs. Balwant Singh, (2003) 3 SCC
362.
19. That was a case of an employee of Road Transport Corporation. In relation to an accident, involving the bus driver, the respondent therein, (a) proceedings before Motor Accidents Claims Tribunal (MACT), for claiming compensation, were initiated by injured persons; (b) disciplinary proceedings were initiated by the department of Transport Corporation and; (c) criminal case was instituted by the police, for the offence of rash and negligent driving. Compensation was awarded to the injured by the MACT. The disciplinary proceedings led to 15 OA No.3618/2013 With OA No.177/2018 imposition of punishment of stoppage of increment. The criminal case ended up in conviction of the employee and taking the same into account, punishment of dismissal was imposed. The Hon'ble Punjab and Haryana High Court had set aside the order of punishment by accepting the plea of double jeopardy. The Hon'ble Supreme Court held as under:
"4. From the facts that are not in dispute, it is abundantly clear that the order dated 12-3-1990 was passed against the respondent reducing the pay to the minimum of time scale of driver for a period of four years on account of his causing loss and bringing a bad name to the Department in the light of the order passed by the Motor Accidents Claims Tribunal, that too after holding enquiry under the Rules and after giving him opportunity. The second order dated 17.9.1992 was passed on the basis of the conviction and sentence passed against him by the competent criminal court for the offence under Section 304-A IPC which was permissible under the Rules. These being the facts, there was no question of prosecuting and punishing the respondent for the same offence twice. The High Court was not right in equating departmental enquiries on different grounds to prosecution in a criminal case. The High Court also has failed to see that the two orders passed against the respondent were on different grounds and were on different cause of actions.16 OA No.3618/2013
With OA No.177/2018
5. Under Rule 7(1) of the Rules, no order imposing a major penalty shall be passed against a person to whom the said Rules are applicable unless he has been given a reasonable opportunity of showing cause against the action proposed to be taken. Under Rule 7(2) procedure to be followed and the requirements to be satisfied before imposing penalty in that regard are indicated. Sub-rule 2(b) of Rule 7 states that the provisions of the foregoing sub- rule shall not apply where any major penalty is proposed to be imposed upon a person on the ground of conduct which has led to his conviction on a criminal case. In the present case, the first order was passed on 12-3-1990 reducing the pay to the minimum of time scale of driver under Rule 7(1) of the Rules. The second order terminating his services was passed on 17-9-1992 under Rule 7(2)(b). When a major penalty is proposed to be imposed upon a person on the ground of conduct which led to his conviction on a criminal charge following the provisions contained in Rule 7(1) and (2) is not required. Rule 7 itself makes a distinction in regard to the punishment to be imposed depending on the grounds."
20. The judgment of Hon'ble Supreme Court in Union of India vs. P.D. Yadav, (2002) 1 SCC 405 was distinguished. The ultimate conclusion is reflected in Para 7. It reads as under :-
"7. Under these circumstances, there was no question of the respondent 17 OA No.3618/2013 With OA No.177/2018 suffering a double jeopardy. The aid of Article 20(2) of the Constitution of India was wrongly taken. Article 20(2) of the Constitution of India does not get attracted to the facts of the present case. Before the trial court, no issue was raised as to the respondent suffering a double jeopardy although in the first appellate court, the discussion was made on this point. In the view we have expressed above that the High Court committed a serious error in holding that the respondent was prosecuted and punished for the same offence twice, the impugned judgment cannot be sustained. Hence, the same is set aside. The judgment and decree passed by the trial court as affirmed by the first appellate court is restored. The appeal is allowed accordingly, but with no order as to costs."
21. The learned counsel for applicants submits that the Service Rules, relating to the employees, in the case before the Hon'ble Supreme Court, are totally different from those in the Delhi Police. It is rather incidental that in WP(C) No.1921/2015 Tariq Ali Khan Vs. Govt. of NCT of Delhi & Others, the Hon'ble Delhi High Court relied on the judgment of Hon'ble Supreme Court in relation to a Sub Inspector of the Delhi Police. Para 18 of the judgment reads as under :-
"18. The Supreme Court in the case of State of Haryana versus Balwant Singh, (2003) 3 SCC 362 had dealt with 18 OA No.3618/2013 With OA No.177/2018 the case of a bus driver, who was awarded punishment of reduction of pay to the minimum scale in the disciplinary proceedings. However, subsequently, for the same occurrence/act, he was convicted under Section 304A IPC and based upon his conviction his services were terminated. The employee challenged the order of termination and was successful as the plea of double jeopardy, i.e., the employee cannot be punished twice, was accepted by the High Court. The State of Haryana had filed an appeal. Reversing the finding of the High Court, the Supreme Court held that there was a manifest error in holding that the employee had been prosecuted and punished twice. The order in the departmental proceedings was distinct from the order passed pursuant to conviction of the employee in the criminal case under Section 304A IPC. There was no question of the employee suffering double jeopardy. The second order was permissible under the powers conferred. Reference was made to the earlier decision of the Supreme Court in Union of India versus P.D. Yadav, (2002) 1 SCC 405."
22. Ultimately, the Writ Petition was dismissed. The same situation obtains in the instant case also. We do not find any merit in the OAs and the same are accordingly, dismissed. We, however, make it clear that in case the appeal preferred by the applicants herein, against the judgment of the Criminal Court leads to 19 OA No.3618/2013 With OA No.177/2018 their acquittal, the procedure prescribed under the Rules shall be followed.
Pending MAs, if any, stand disposed of. There shall be no order as to cost.
(Aradhana Johri) (Justice L. Narasimha Reddy)
Member (A) Chairman
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