Central Administrative Tribunal - Delhi
Gyanender Singh vs Gnct Of Delhi on 1 November, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, NEW DELHI OA 1664/2012 New Delhi this the 01st day of November, 2012 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE MRS. MANJULIKA GAUTAM, MEMBER (A) Gyanender Singh, SI (FPB) in Delhi Police, PIS No. 28820002 R/o A-2/21, Type-III, Pitam Pura Police Lines, New Delhi-34. Applicant. (By Advocate Shri Anil Singal) Versus 1. GNCT of Delhi Through Commissioner of Police, PHQ, IP Estate, New Delhi. 2. Addl. Comm. of Police, (Crime), PHQ, IP Estate, New Delhi. 3. DCP (Crime & Railways), Through Commissioner of Police, PHQ, IP Estate, New Delhi. 4. Sh. M.S. Bisht (EO), ACP/Crime, PHQ, IP Estate, New Delhi. Respondents. (By Advocate Shri N.K. Singh proxy for Mrs. Avnish Ahlawat) O R D E R (Oral)
Shri G. George Paracken:
The applicants grievance in this Original Application is against the Annexure A-2 order dated 26.04.2012 to reopen the departmental inquiry already initiated against him from the stage it was kept in abeyance and his name was removed from the list of criminal cases. Further, according to the said order, the respondents have stated that the period under which he remained under suspension will be decided later on, on completion of the departmental inquiry now proposed to be reopened. Shri M.S. Bist, ACP (Crime) has also been appointed as Inquiry Officer for conducting the departmental inquiry on day to day basis and he has to submit his findings to the disciplinary authority.
2. Earlier, a departmental inquiry was initiated against the applicant vide order dated 25.05.1990 and a notice dated 26.12.1990 was issued to him as to why he should not be dismissed from service. Later on, in terms of a direction of this Tribunal dated 25.09.1992 in OA 93/91, the aforesaid order was withdrawn, vide order dated 11.01.1993.
3. Subsequently, the respondents filed FIR No. 10/94 under Sections 420/468/471 IPC against the applicant in PS Mukherjee Nagar. The respondents have also issued the Annexure A-1 order dated 10.02.1994 initiating a departmental inquiry against him on the same set of allegations on which the criminal case was filed. The relevant part of the aforesaid order dated 10.02.1994 is extracted below:
The Honble Tribunal directed that the correct date of birth of the applicant cannot be considered on the basis of character certificate issued by the Principal, Chunni Lal Inter College but this should be on the basis of independent and clinching evidence, if any, and appropriate action regarding date of birth should be taken into consideration after giving him an opportunity.
Accordingly, the correct date of birth of ASI (now SI) Gyanender Singh No. 1735/D has been verified from independent sources and there is clinching evidence which shows that the actual date of birth of the defaulter is not 23.12.1960 but 3.7.1958 as per authenticated documents produced by Asstt. Secretary (Verification) Board of Secondary Education, Allahabad (U.P.) and Principal, Chunni Lal Inter College, Chola Banchawali, Bulandshahar (U.P.). On the basis of this cinching evidence, since prima facie offences u/s 420/468/471 IPC were made out, a case vide F.I.R. No. 10 dated 10.1.94 u/s 420/468/471 IPC has been registered against SI Gyanender Singh No. 1735/D at PS Mukherjee Nagar, Delhi.
S.I. Gyanender Singh No. 1735/D knowingly concealed these material/facts and produced forged documents mentioning his date of birth as 23.12.1960 at the time of recruitment/appointment as Constable in Delhi Police and as well as ASI (F.P.B.). He had concealed this fact with a motive to make himself eligible candidate for the post of Constable as he was overage and was not entitled to apply, as his actual date of birth was 3.7.1958. But he applied for the post of Constable by furnishing incorrect date of birth as 23.12.1960 and furnished forged documents in support of his claims. He had also given a declaration at the time of applying for the post of Constable in 1982 that his services could be terminated at any time in case any information furnished by him was found false/incorrect. Similarly a declaration to this effect was given by him at the time of his appointment as ASI (F.P.B.) in 1986.
The above acts on the part of S.I. (F.P.B.) Gyanender Singh No. 1735/D amount to gross misconduct, concealment of facts and unbecoming of a Govt. servant which render him liable for departmental action punishable under Section 21 of Delhi Police Act, 1978.
I, Maxwell Pereira, DCP/C&R, Delhi, therefore, order under the provision of Delhi Police (Punishment & Appeal) Rules, 1980 that SI (FPB) Gyanender Singh No. 1735/D (PIS No. 28820002) be dealt with departmentally by Shri S.S. Manan, ACP-III/Crime Branch on day to day basis and findings be submitted to the undersigned expeditiously. The E.O. is also directed to submit his process report on every fortnight of the months.
4. Again the Applicant challenged the aforesaid order dated 10.2.1994 before this Tribunal vide OA 1409/1995 on the ground that both the departmental enquiry proceedings and the pending criminal proceedings are on same set of facts. Accepting the plea of the Applicant, the Respondents kept the Departmental Enquiry proceedings under suspension.
5. Later on, the criminal case based on the aforesaid FIR No. 10/94 culminated in the applicants acquittal vide Annexure A-3 judgment dated 12.08.2011. A perusal of the aforesaid judgment would reveal that the allegations against the Applicant were that during the period 1981-82, he forged his matriculation certificate by altering the actual date of birth 03.07.1958 to 23.12.1960 and he used the said forged certificate while applying for the post of Constable in the year 1982 and induced the Government to offer him job of Constable on the basis of the said forged certificate. In order to bring home the guilt of the accused, the prosecution examined 8 witnesses. However, the submission of the accused before the criminal court was that a matriculation certificate was issued to him by the Board in usual course of business along with the certificates of other students of his batch and he has not done any cutting, erasing or alteration in the original certificate. The criminal court while passing the judgment held that it is necessary for the prosecution to prove its case beyond reasonable doubt and has to stand on its own legs and the accused has a right to remain silent till the conclusion of trial and weakness in defence of accused cannot be taken to have proved the case of prosecution. Thereafter, the court examined as to whether the prosecution has been able to prove the said charges against the accused beyond reasonable doubt or not. The Trial Court has held that once it is admitted by the prosecution witnesses during trial that matriculation certificate is issued by the office of U.P Board, Allahabad, then it cannot be presumed that the accused has forged the said document. This was more so when it was admitted by the prosecution witnesses during their cross examination that as per the relevant procedure followed Chunni Lal College, examination forms of students used to be deposited by officials of said college themselves, and the particulars of the examination form used to be thoroughly checked and verified by the class teacher as well as the Principal of the said college and they also used to put their signatures as token of having verified those particulars. The Court has also observed that the deposition of one of the prosecution witnesses Shri Prem Pal Singh, Officiating Principal of Chunni Lal Intermediate College, Bullandsher (UP) is that as per record available in the said college, the date of birth of accused is 23.12.1960. He has also testified that S.R Register containing relevant entry in respect of the accused showing his date of birth as 23.12.1960, has been kept in safe custody and also that the date of birth mentioned therein is not tempered one. The concluding observation of the Trial Judge is that since the prosecution has failed to prove that matriculation certificate was forged one, there is no question of accused inducing the police department to provide employment on the post of Constable on the basis of forged document or commission of the offence of cheating punishable under Section 420 IPC. Consequently, the accused Gyanender Singh (applicant herein) stood acquitted. The relevant part of the said judgment reads as under:-
Once it is admitted by the prosecution witnesses during trial that matriculation certificate Ex. PW6/A is issued by the office of UP Board, Allahabad then the Court fails to understand as to how the accused can be presumed to have forged the said document. This is more so when it has been admitted by prosecution witnesses during their cross examination that as per relevant procedure followed in Chunni Lal College, examination forms of students used to be deposited by officials of said college themselves and the particulars of the examination form used to be thoroughly checked and verified by the class teacher as well as the Principal of the said college and they also used to put their signatures as token of having verified those particulars. It has also come on record that the officials of Chunni Lal Intermediate College themselves used to deposit the matriculation examination forms with U.P. Board and entries are made in such examination forms on the basis of entries available in the school record. PW-8 has also admitted during cross examination that on the basis of specific students registration register and application forms, admission tickets used to be issued to the candidates and same were also mentioned in admission tickets register but still he did not collect either copy of application form of accused submitted by Inter College Authority with Inter Board, Allahabad and he also did not verify the date of birth of accused mentioned in his examination form. He also did not collect the copies of specific students registration register and admission tickets register in respect of accused from the office of U.P. Board, Allahabad. In the aforesaid backdrop, the said record was relevant record which ought to have been collected by IO during investigation as they would have thrown sufficient light on the aspect of forgery of document but investigating agency failed to do so. It is appropriate to refer to Section 35 of Indian Evidence Act which provides that an entry in any public or other official book, register or record stating a fact in issue or relevant fact which is made by a public servant in discharge of his official duty or by any other person in performance of a duty specially enjoined upon him by law of the country in which such book or register or record is kept then said entry in itself is relevant fact. Considering the relevancy of the entries contained in S.R. register, specific students registration register, admission tickets register, examination form of Board examination in respect of accused in the light of said provision, this Court is of the view that all the aforesaid record being relevant and material record should have been seized by IO during investigation. Due to the failure on the part of the investigating agency to collect those material record during investigation, the prosecution is bound to face the consequences of having not proved the guilt of accused beyond reasonable doubt.
At this juncture, it is also relevant to mention here that PW-5 Shri Prem Pal Singh Officiating Principal of Chunni Lal Intermediate College, Bullandsher, (UP) (who is the prosecution witness examined in this case), has not supported the prosecution case at all. He has categorically deposed before the Court that as per record available in the said college, the date of birth of accused is 23.12.1960. Although, the prosecution made futile attempt to challenge the testimony of said witness by putting suggestion during his cross examination that date of birth has not been mentioned in figure in the column of date of birth in S.R. Register but the said suggestion has been completely denied by the said witness who has testified that S.R. Register containing relevant entry in respect of accused showing his date of birth as 23.12.60, is kept in safe custody and also that the date of birth mentioned therein in not tempered one. The Court does not find any reason as to why the testimony of PW-5 should be discarded and as to why the copy of S.R. record Ex.PW5/B proved by said witness, should not taken into consideration. The prosecution has not been able to bring on record any material so as to disbelieve the testimony of PW-5 or to ignore the copy of S.R. Ex.PW5/B. For the reasons mentioned herein above, the Court is of the considered view that prosecution has miserably failed to prove on record that matriculation certificate Ex.PW6/A of accused is forged or false document. Thus, the offence U/s 466 IPC could not be proved beyond shadow of doubt. Once it is held that prosecution has failed to prove the offence U/s 466 IPC, it necessarily follows that the other two offences i.e. offence U/s 420 read with Section 471 IPC also could not be proved as in order to prove said two offences, it was pre-requisite for the prosecution to show that accused had forged his matriculation certificate Ex.PW6/A and used the same in any Government Department. Since the prosecution has failed to prove that matriculation certificate Ex.PW6/A is forged one, there is no question of accused including the police department to provide him employment on the post of Constable on the basis of forged document or commission of the offence of cheating punishable U/s 420 IPC.
Consequently, the accused Gyanender Singh stands acquitted. His personal bond stands cancelled. However, his surety bond shall remain in force for a period of six months from the date of this judgment. Original documents, if any of accused be returned after cancellation of endorsement if any. File be consigned to Record Room.
6. The learned counsel for the applicant has also relied upon the judgment of the High Court of Delhi in WP (C) No. 22584/2005 Commissioner of Police Vs. HC Laxmi Chand decided on 09.09.2011 to explain the concept of acquittal on technical grounds. The relevant part of the said judgment reads as under:
The Tribunal also relied on the case of Vijender Singh Vs. Commissioner of Police, Original Application No. 2640 of 2002 decided on 24th July, 2003 holding that if the decision is arrived at on the basis of the evidence on record in such a case if the charge is not substantiated or the evidence is insufficient, it will not be acquittal on technical grounds. It was held that once the evidence had been allowed to be produced and is not forthcoming, it would be an acquittal rather than an acquittal on technical grounds. As to what acquittal on technical ground means the Tribunal held that failure on technical grounds would be if an unauthorized person files a complaint or if there is no proper sanction or if the report has not been lodged by a competent authority or on account of any procedural flaw which may prompt the court to put an end to prosecution case, then only it will be an acquittal on the technical grounds. It was further held that in such cases prosecution or the State may still be in a position to come to the court after removing the said technicalities. However, where the evidence is allowed and for some reasons it does not prove the charge framed or the testimonies of the witnesses who turned hostile for some reasons is not reliable, the prosecution and the State cannot come and file another case on the same charge. If the criminal court takes note of the evidence on record and for want of evidence holds that the charge is not proved it will not be an acquittal on technical ground and the exception carved out under Rule 12 (a) of the Delhi Police (Punishment & Appeal) Rules, 1980 cannot be invoked. On perusing the order of the criminal court, the Tribunal had held that the order dated 22nd January, 2001 was on perusal of the evidence and the acquittal pursuant to the perusal of the evidence by the criminal Court could not be construed as an acquittal on technical grounds.
7. However, the respondents on receipt of the aforesaid judgment of the criminal court issued the impugned Annexure A-2 order dated 26.04.2012 to the applicant stating that he was liable to be proceeded under Rule 12 of the Delhi Police (Punishment and Appeal) Rules, 1980 and to reopen the departmental inquiry already initiated against him from the stage it has been kept in abeyance and his name has been removed from the list of criminal cases. The applicant has challenged the aforesaid order on the ground that, as held by the respondents themselves, his case could have been reopened only under Rule 12 of the Delhi Police (Punishment and Appeal) Rules, 1980 but none of the ingredients of that Section would allow them to reopen the case. He has, therefore, invited our attention to the provisions of the said Section which read as under:
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:-
the criminal charge has failed on technical grounds, or in the opinion of the court, or on the Deputy Commissioner of Police the prosecution witnesses have been won over; or the court has held in its judgment that an offence was actually committed and that suspicion rests upon the police officer concerned; or 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 additional evidence for departmental proceedings is available.
8. In their reply also, they have stated that in terms of section 12 of the Delhi Police (Punishment and Appeal) Rules, 1980, the departmental proceedings can be revived and further proceedings can be held against the Applicant on the following grounds:
10. That the acquittal report received from the Honble Court has been examined by DCP/EOW and following shortcoming noted against the IO in case FIR No. 10/94 dated 10.01.1994 u/s 420/466/471 IPC PS Mukherjee Nagar Delhi:
There is unexplained delay in lodging the FIR as on the letter dated 09.12.1993 SI Ram Kumar submitted his report on 13.12.1993 but FIR was registered only on 10.01.1994. Acquittal is on technical grounds.
Complainant Krishna Avtar Sharma could not be examined as his name neither has been specified in the complaint nor has been mentioned in the list of PWs.
There are overwriting (date has been changed from 7th to 9th); cutting (Model Town has been scored off & Mukherjee Nagar Mentioned) and some words/numbers were written with different ink. As complainant could not be examined, so no explanation could come forward of these cutting/overwriting.
Copy of letter dated 09.11.1993 of whose reference has been given in complaint dated 09.12.1993 has not been placed on record.
Principal of Chunni Lal College Bulandsahar examined as PW-5 deposed that as per school record brought by him the DOB of accused is 23.12.1960, he has placed on record the copy of relevant page of SR Register reflecting DOB as 23.12.1960. Actually turned hostile as before the enquiry officer, he proved from the records that Date of birth of applicant is 3.7.1958.
The alleged Certificate issued by Madhyamik Shiksha Parishad High School reflecting DOB as 23.12.1960 does not reflect any cutting/overwriting. So it could not be proved as to how and in what manner tampering has been done.
The said alleged certificate was not sent to FSL for detection, as to whether certificate is forged one or not.
IO SI Raj Singh examined a PW-4 deposed during cross examination that during investigation he met Deputy Secretary of UP Board and shown him the certificate (alleged forged) to him who stated that the said certificate was issued by his office i.e. UP Board.
During statement in the Court Inspector K.K. Gaur (IO) explained the procedure as to how DOB is entered in Board Certificate and as per that procedure, application form for examination used to be submitted by concerned school only and the DOB is specified in Board certificate.
No proper investigation has been conducted about the documents on the basis of which DOB was specified by UP Board in certificate were not seized by IO.
Therefore the acquittal was not on merit but on technical grounds and witness turning hostile.
9. They have also stated that their prosecution Branch has found the following shortcomings on the part of the prosecution in the criminal case:
(a) The complainant Krishna Avtar Sharma was not examined in detail regarding the alleged forgery.
(b) The date of birth was not verified from the record of School/Board pertaining to the previous classes/education done by the accused.
(c) The application form sent by the school to the UP Board was not taken in possession in which the date of birth was mentioned by the School authority.
(d) The alleged forged certificate was not examined from FSL regarding the overwriting/alternation in the name.
10. We have heard Shri Anil Singal, the learned counsel for the applicant and Shri N.K. Singh learned proxy counsel for the respondents. As admitted by both the counsel for the parties in their pleadings, in order to reopen the departmental proceedings against a police official after his acquittal in the criminal case and to proceed against him on same set of charges, the conditions as aforementioned in Rule 12 of the Delhi Police (Punishment and Appeal) Rules, 1980 have to be satisfied. From the reply filed by the respondents, we do not find merit in their contention that the criminal case against the applicant failed on technical grounds. On the other hand, a reading of the judgment in the criminal case would reveal that there was no evidence whatsoever against the applicant to prove the charges levelled against him and it was on that account, he was acquitted. Rather, the court has said that the certificate alleged to have been submitted by the applicant was not at all a forged one. The respondents have also no case that they lost the case before the criminal court because the PWs have been won over. When the criminal court has categorically stated that the document in question has not been verified, there is no question of the respondents saying against it and to say again that the offence was actually committed. We also do not find any other conditions, as mentioned in the aforesaid Rule, applicable in the case. In the above facts and circumstances of the case, the applicant is not liable to be proceeded against departmentally under the provisions of the Delhi Police (Punishment and Appeal) Rules, 1980 and punished on the same charge or on a different charge upon the evidence cited in the criminal case. Consequently, we allow this OA and quash and set aside the impugned orders. We also direct the respondents to restore all benefits except back wages which have been denied to the Applicant on account of the initiation and pendency of the aforesaid criminal case as well as the departmental proceedings. The respondents shall also treat the period of suspension of the applicant as duty for all intents and purposes except for back wages. They shall also pass appropriate orders in compliance with the aforesaid directions within a period of two months from the date of receipt of a copy of this order granting the benefits to the applicant as ordered above. There shall be no order as to costs.
(Mrs. Manjulika Gautam) ( G. George Paracken ) Member(A) Member (J) `SRD