Central Administrative Tribunal - Delhi
Subhash Chand vs Govt. Of Nct Of Delhi on 17 January, 2009
Central Administrative Tribunal
Principal Bench
1. OA No.80/2008
2. OA No.146/2008
New Delhi this the 17th day of January 2009.
Honble Mr. Shanker Raju, Member (J)
Honble Mr. N.D. Dayal, Member (A)
OA No.80/2008
Subhash Chand,
Constable in Delhi Police,
PIS No.28881895,
R/o D-588, Mandir Wali Gali,
Bhajan Pura, Delhi-53. -Applicant
(By Advocate Shri Anil Singhal)
-Versus-
1. Govt. of NCT of Delhi,
through Commissioner of Police,
PHA, I.P. Estate, New Delhi.
2. Joint Comm. Of Police,
New Delhi Range, PHQ,
IP Estate, New Delhi.
3. DCP (North-East Distt.),
DCP Office Seelam Pur,
Delhi. -Respondents
(By Advocate Shri Ajesh Luthra)
OA No.146/2008
Karan Singh,
ASI in Delhi Police,
PIS No.28680322,
R/o VPO Hassan Garh,
Distt.: Rohtak, Haryana. -Applicant
(By Advocate Shri Anil Singhal)
-Versus-
1. Govt. of NCT of Delhi,
through Commissioner of Police,
PHA, I.P. Estate, New Delhi.
2. Joint Comm. Of Police,
New Delhi Range, PHQ,
IP Estate, New Delhi.
3. DCP (North-East Distt.),
DCP Office Seelam Pur,
Delhi. -Respondents
(By Advocate Shri Ajesh Luthra)
O R D E R
Mr. Shanker Raju, Honble Member (J):
Under the rule of law and the Constitution of India there has been a divisionalisation of courts as to the subject matters dealt with by them. No infiltration is permissible in the respective fields. A court dealing with the service matters cannot assume the role of a criminal court except the methodology, which holds vice versa as well.
2. Acting beyond ones authority is an act, which in legal parlance is an act without jurisdiction.
3. As these OAs are founded on common facts with an identical question of law, are being disposed of by this common order.
4. Applicants through this OA, who are constable Subhash Chand and ASI Karan Singh, have impugned the common order of departmental enquiry (DE) dated 21.6.2004 and a disagreement note dated 17.10.2006. Also assailed is an order passed by the disciplinary authority (DA) on 8.1.2007, whereby pursuant upon a common enquiry a major penalty of forfeiture of two years approved service with proportionate reduction of pay and treatment of suspension period, as not spent on duty, has been inflicted upon the applicants. Lastly assailed is a common order in appeal dated 16.10.2007, where the punishment has been upheld.
5. Applicants, who have been allegedly involved in FIR No.448, dated 8.12.2003 under Section 376/34 IPC, while posted at PS Seema Puri, were placed under suspension on 8.12.2003 and were reinstated on 11.6.2005, have been proceeded against in a DE by order dated 26.6.2004. Applicants, who have been facing criminal trial requested the respondents to keep the enquiry in abeyance, which was acceded to on 18.1.2005. However, in the criminal trial a judgment dated 20.1.2005, finding not even an iota of evidence against the accused Subhash Chand acquitted him, whereas the other accused Karan Singh was given the benefit of doubt. The Additional Session Judge made the following observations:
12. After mulling over the evidence on record and having heard the counsel for the parties, I find that there is not even an iota of evidence against accused Subhash. He, is, therefore, acquitted.
13. The case against accused Karan Singh swirls around the letter Ex. Pw 1/D allegedly written by him. Accused had categorically denied having written said letter. The said letter was also not proved by Asma, W 1 or Seema Bhattacharya, PW 2. The Investigating Officer did not take the trouble to get it examined from hand writing expert. The investigation of this case was done in a happy go lucky manner because the case pertains to police official. Moreover, the accused had made allegations against the Station House Officer, detailed above. Due to lack of evidence against accused Karan Singh, he can not be convicted. He is given the benefit of doubt and accordingly acquitted.
14. However, in the interest of justice, I hereby direct the DCP concerned to hold a Departmental Enquiry and Original letter be sent to him alongwith copy of this order through Chief Prosecutor. DCP is also required to file the report in this regard within three months of receipt of this letter.
6. The enquiry was resumed on 11.6.2005, the prosecution witnesses (PWs) were examined and the enquiry officer (EO) vide its finding dated 22.2.2006, on the basis of the statement of the prosecutrix that no rape was committed by the alleged delinquent officials, finding no proof of guilt of the delinquent officials recommended discharge of the applicants.
7. However, the DA vide its disagreement note dated 17.10.2006 curtailing short the procedure of defence on disagreement proposed a major penalty upon applicants.
8. A reply to the disagreement note culminated into a punishment order, which on appeal when affirmed gives rise to the present OAs.
9. A reference to Rule 16 (iv) of the Delhi Police (Punishment & Appeal) Rules, 1980 is sub judice before a Full Bench of this Tribunal whereby jurisdiction of the DA to act when a discharge is made, which has been otherwise ruled out, is under consideration. However, these two OAs have been segregated from the Full Bench reference by an order dated 17.12.2008 on the statement of the learned counsel of the respondents.
10. At the outset, Shri Anil Singhal, learned counsel of applicants states that as per Rule 12 of the Delhi Police Rules ibid, on acquittal from a criminal case unless the reasons for bringing in the case within the exceptions stated under Rule 12 (a) to (e) are mentioned by the DA in its DE order, no punishment departmentally on the same charge could be inflicted.
11. Learned counsel would contend that in case of winning over of the witnesses mere hostility is not sufficient, as in the cases before us the court has not opined that the witnesses have been won over nor such a finding has been recorded by the DA prior to initiating an enquiry against the applicant.
12. Learned counsel would also contend that in an analogous situation under the Punjab Police Rules in CA No.5812/2008 in The State of Punjab and Ors. v. Prem Sarup, it has been held by the Apex Court that hostility of witness has not been equated with their being won over and for want of material the enquiry has been set aside.
13. Learned counsel would contend that a similar view has been expressed by this Tribunal, against which the Writ Petition No.4431/2005 was preferred before the High Court of Delhi in Govt. of N.C.T. of Delhi v. Satya Dev Singh, a decision dated 21.4.2005 upheld the contention and affirmed the decision of the Tribunal against which CC No.10487/2005 filed before the Apex Court has been dismissed on 21.11.2005. A similar view taken by this Tribunal in S.C. Jagsaran v. Union of India, OA No.2225/2006, decided on 22.8.2007 has also been relied upon. In the above backdrop, Shri Anil Singhal states that insofar as applicant Subhash Chand is concerned, when no evidence has been found against him he has been acquitted honourably and no punishment can be inflicted against him and in case of applicant Karan Singh even the benefit of doubt amounts to clean acquittal and as such no punishment departmentally could have been inflicted upon applicants, which is in violation of Rule 12 of the Rules ibeid.
14. Shri Singhal states that even if there is a direction by the Additional Session Judge as to holding of DE the same may at best be read in the context of applicant Karan Singh and that too in accordance with the procedure laid down under the Delhi Police Rules. Referring to non-interference and assumption of jurisdiction by a criminal court over the service matters the decision of the Apex Court in Commandant, 20th Battalion, ITB Police v. Sanjay Binjola, (2001) 5 SCC 317 has been relied upon, wherein it is held that the powers of the Court does not confer jurisdiction upon the appellate court to pass orders with the service career of the convict.
15. Learned counsel has also relied upon the decision of the Apex Court in Common Cause v. Union of India and others, 2008 (5) SCC 511 to contend that a lacuna or defect in the Act cannot be created by the Court, but it is to be corrected through an amendment by the legislature. It is also stated that in the present cases after the charge stage there is no methodology laid down for disagreement by the DA and by disagreeing the entire ordeal of the enquiry relating to the submission of defence evidence has been curtailed by the DA and the punishment imposed is without following the due process of law, which cannot be sustained.
16. On the other hand, learned counsel of respondents Shri Ajesh Luthra states that when there is a direction by the trial court to the DCP to hold enquiry, DE cannot be segregated in respect of the applicants, purpose of which was to look into the incident. It is also stated that the aforesaid order being binding has been complied with.
17. Learned counsel states that if the applicants were not satisfied with the direction to hold enquiry they have not challenged the order of the Additional Session Judge before the High Court.
18. Learned counsel would also contend that against disagreement note and in pursuance thereof on a reply no material has been brought, which is now being taken as an objection, clearly shows that the prejudice has not been raised as a ground.
19. In rejoinder, learned counsel of applicant would contend that any benefit of doubt, which may be due to lack of evidence there are two views possible but there is no doubt in the mind of the trial court while acquitting the applicants and non-discharge of statutory obligation under Rule 12 renders the enquiry null and void as well as the consequent punishment.
20. Learned counsel has cited an example under Rule 9 of the CCS (Pension) Rules, 1972, whereby in case of exoneration by a regular DA with the assumption that applicant was in service, the penalty is to be inflicted only by the President.
21. On careful consideration of the rival contentions of the parties and from the perusal of the record it is trite that when an administrative authority acts as a quasi-judicial authority being creature of a Statute it is bound in all four corners by the provisions of the Act. Accordingly, while holding a DE post-acquittal of a police official the impact of Rule 12 and statutory obligation contained therein is not only to be followed but meticulously examined.
22. Hostility of witness would be apparent when even on cross-examination by the prosecutor the PW does not support the story raised against the accused but that does not mean that such hostility has been arrived at, at the behest of the accused or under influence, threat or fear of reappraisal. In such an event, non-recording of reasons as to why the witness had deposed against the prosecution story and no justification that this has been attributed to the accused, a finding as to winning over the witness cannot be logically and rationally be arrived at. Though the Full Bench reference which deals with post Rule 16 (iv) stage under the Rules may not be relevant at this stage but in the cases before us on discharge of applicants Rule 16 (iv) of the Rules where the DA is competent to take a decision as a DA the enquiry officer recommends their discharge. In case of disagreement when the prosecution evidence is available instead of cutting short the enquiry from Rule 16 (v) and reaching the stage of Rule 16 (xii) is a short circuit adopted by the DA, as without prejudice to the Full Bench reference nothing precluded the DA to frame a formal charge or directed the EO to frame it and thereafter to complete the enquiry after allowing applicants a reasonable opportunity to produce their defence evidence and defence statements. In a manner DA in these cases assumed on dual function the role of both EO and DA. He recorded that without any defence produced by the applicants a finding of guilt and then issued a notice in the form of disagreement note with a proposal to impose major penalty, which otherwise in a regular DE on framing of the charge is possible only after the finding under Rule 16 (ix) is recorded by the EO. The EO and DA are two separate entities. The role of the DA is to order DE and thereafter to pass a final order, exonerating or punishing the delinquent. The remaining process between it has to be conducted by the EO. When the appellate authority assumes both the roles then it has to be an example where the DA has become judge of its own cause and a real apprehended bias is apparent from the methodology, as not only on disagreement in these cases a finding of guilt is recorded by the DA but also to implement it by proposing punishment on disagreement has been arrived at. This is in violation of the procedural rules laid down under Rule 16 and on the face of it has prejudiced the applicants as they have been deprived of an opportunity to adduce their defence and the only defence sought from them is on disagreement but not on the basis of the prosecution evidence brought on record. Curtailing the ordeal, as prescribed under Rule 16 of the Rules ibid and non-observance of the methodology is an act of the DA in gross violation of Rule 16 and in such an event the disagreement note arrived at, culminates into a punishment which has been affirmed in appeal is against law.
23. A court of criminal jurisdiction as per the decision in Sanjay Binjola (supra) has no jurisdiction to infiltrate into an arena for which the jurisdiction is vested on the Central Administrative Tribunal. An order of enquiry or any adverse order, which affects the service conditions, has to be passed by the DA or at best under the writ jurisdiction vested under Articles 226 and 227 of the Constitution of India. The court of Additional Session Judge is not vested with any jurisdiction to either order an enquiry or to lay down any methodology, which ultimately affects, on prejudice, the right of a convict in service jurisprudence.
24. Assuming the aforesaid direction of holding DE against the applicant was legally correct, yet any enquiry ordered under rule of law cannot be construed as a mandate to hold an enquiry de hors the rules. When the court directs enquiry, it has to be deemed on necessary implications that the enquiry has to be conducted in accordance with law.
25. To hold an enquiry against a police official is the prerogative of the DA. A direction of the A.D.J. to the DCP after acquitting the accused to hold a DE has been construed on non-application of mind by the DCP as a mandate to hold an enquiry bypassing Rule 12 of the Delhi Police Rules ibid.
26. Rule 12 of the Delhi Police Rules ibid allows on acquittal holding of enquiry under clause 12 (b) when either in the opinion of the court or DCP the PWs have been won over and the court in its judgment under clause 12 (c) holds that the offence was actually committed but the suspicion rests upon police officials, which, in common parlance is benefit of doubt. From the perusal of the order passed by the A.D.J. after the prosecutrix has not supported the prosecution. She denied the prosecution entirely but admitted her statement under Section 161 Cr. PC but made at the instant of one Seema Bhattacharya. Basically the allegations against applicants have been denied. In this backdrop, without recording finding of acquittal against applicant Subhash Chand it is observed that there is not even an iota of evidence against him and for Karan Singh, a letter written by him was also not proved by the prosecutrix or PW Seema Bhattacharya. No writing expert was examined. Accordingly, being unhappy with the investigation of the case and allegation against SHO due to lack of evidence against Karan Singh he was given benefit of doubt. In our considered view, holding of a DE in this case is neither in the context of Subhash Chand nor Karan Singh but when the investigation was done in a lackadaisical manner and allegation against SHO the enquiry was directed to be held against the investigating team. We cannot read any thing, which is not supplied in an order passed in judicial fora. It is trite law that on interpretation we cannot fill in the gaps but on liberal construction the judgment, which though cannot be interpreted as a Statute, has to be understood. As we do not find any specific direction to hold enquiry against the applicant a misconceived act of the respondents to deem this as initiation of enquiry against the applicants shows a hasty decision and an arbitrary one to avoid holding enquiry against the investigating team.
27. Moreover, insofar as the winning over of the witnesses is concerned, in Satya Dev Singh (supra) Delhi High Court has clearly ruled that when there is a finding of Additional Sessions Judge that evidence is not sufficient to convict the acquittal on benefit of doubt and non-recording of any finding that the witnesses have been won over on being declared hostile at the behest of the applicants would not be sufficient to invoke the exception under Rule 12 (a) & (b) the decision of Satya Dev Singh (supra) has attained finality and is binding on us. Moreover, in a similar case the coordinate Bench in Jagsaran (supra) has also followed the dicta, to which we respectfully agree.
28. As regards winning over of the witnesses is concerned, in Prem Sarup (supra) the Apex Court while dealing with an analogous provision in Punjab Police Rules clearly ruled that when no material is brought to show that witnesses have turned hostile and were won over, no enquiry and consequent punishment can be sustained.
29. From the perusal of the resumption of DE we do not find that DCP has recorded any such finding and this finding is also conspicuously absent from being recorded in the order passed by the Additional District Judge. As such when Rule 12 (a) & (b) have not been attracted, applicant Subhash Chand who has been acquitted honourably and when no evidence has come-forth against him, cannot be proceeded and punished in the DE on the same charge. As we find from the record that the charge levelled in the DE is akin to what has been framed in the criminal trial, the orders passed in respect of Subhash Chand are wholly illegal.
30. As regards Karan Singh and the benefit of doubt given to him, there is no finding in the A.D.J. order that the offence has been actually committed but the suspicion rests upon the applicants. In such view of the matter the benefit of doubt when no such concept exists in Cr. PC is good for all purposes, as held by the Apex Court in General Manager, Uco Bank v. M. Venuranganath, 2007 (14) SCALE 307. It has been further held by the Apex Court in Sashi Kumar v. Uttri Haryana Bijli Vitran Board, 2007 (5) ATJ P&H 154 that on benefit of doubt one has to be re-instated with full back wages. In such view of the matter holding of enquiry against applicants by the DA without discharging its obligation under Rule 12 and when the cases of applicants are not covered under any of the exceptions, even the enquiry ordered against Karan Singh and the consequent punishment imposed cannot be sustained.
31. Resultantly, for the foregoing reasons, OAs are allowed. Impugned orders are set aside. The respondents are directed to accord consequential benefits on treatment of suspension period as spent on duty with arrears and restoration of withheld pay to the applicants, within a period of two months from the date of receipt of a copy of this order. No costs.
Let a copy of this order be kept in OA No.146/2008 as well.
(N.D. Dayal) (Shanker Raju)
Member (A) Member (J)
San.