1. In this OA the applicant has sought quashing and setting aside the orders of the Disciplinary Authority dated 09.06.2005 (Annexure A-1) and of the Appellate Authority dated 23.06.3006 (Annexure A-2), vide which a penalty of forfeiture of five years of approved service permanently has been imposed upon him and the period of his suspension has also been treated as not spent on duty.
2. This is the second round of litigation. The bare minimum facts, which need mention, are that upon FIR Nos. 1082/ 1997 and 1083/1997 having been filed on 17.12.1997, disciplinary enquiry under Delhi Police (Punishment & Appeal) Rules, 1980 (Rules of 1980, for short) was initiated against the applicant on 15.04.1999 on the same charges. The Enquiry Officer (EO, for short) issued the summary of allegation and on denial of charges by the applicant, the enquiry proceedings were initiated. However, on a request made by the applicant, disciplinary enquiry was kept in abeyance, vide order dated 29.10.1999, till the finalisation of the criminal cases registered against the applicant.
The applicant was acquitted in both the criminal cases, vide judgments of the Trial Courts dated 26.04.2001 and 23.07.2001. Thereupon, the respondents, vide order dated 31.12.2001, took a decision to re-open the disciplinary enquiry on the ground that the applicant had been acquitted in both the cases due to Prosecution Witnesses (PWs, for short) turning hostile. The Disciplinary Authority, vide order dated 03.09.2002, awarded the penalty aforementioned and the appeal of the applicant was rejected, vide order dated 19.02.2003. Thereupon, the applicant filed OA No. 1296/2003, which was disposed of, vide order dated 14.01.2004, with the following direction: 13. Resultantly, without dwelling into other submissions, we allow the present Original Application and quash the impugned order.
However, we make it clear that if the Deputy Commissioner of Police deems fit to pass an order, he may pass a fresh order in accordance with law. Consequential benefits, if any, accruing to the applicant, be granted by the respondents.
3. Pursuant to the order of this Tribunal aforementioned, the respondents passed the impugned orders dated 09.06.2005 (supra) and 23.06.2006 (supra). Hence the OA.4. The applicant has contended that as per Rule 11, departmental action can be taken against a Police Officer if he is judicially convicted. In case of judicial acquittal, departmental action can be taken under certain conditions as enumerated in Rule 12. However, once the applicant was acquitted from the charges on merits by the Trial Courts, it is against the principles of natural justice to punish him for the same set of allegations.
5. The applicant has further contended that the respondents have failed to appreciate that he was acquitted by the Trial Courts on merits and it is nowhere mentioned in the order of the respondents dated 31.12.2001 (supra) or in the judgments of the Trial Courts that witnesses were won over by him. The Court as well as respondent No. 3 had only stated that witnesses had turned hostile. Therefore, this Tribunal had quashed the order dated 31.12.2001 (supra), whereby the disciplinary enquiry was re-opened, holding the same to be in violation of Rule 12 of Rules of 1980.
6. The applicant has argued that respondents have failed to appreciate that the entire disciplinary proceedings were quashed and set aside by the Tribunal, vide order dated 14.01.2004, and not just the order of punishment dated 03.09.2002, as understood by the respondents, while passing the impugned order of punishment dated 09.06.2005. The only liberty given by this Tribunal was to pass a fresh order, taking into consideration the orders dated 26.04.2001 and 23.07.2001 acquitting the applicant and then decide, in view of Rule 12, whether disciplinary enquiry can still be initiated under any of the exceptions given in Rule 12 of Rules of 1980.
7. The applicant has also contended that respondent No. 3 was not the Disciplinary Authority of the applicant on 09.06.2005, when the impugned order of punishment was passed. Therefore, respondent No. 3 could not have passed the order of punishment against the applicant as per Rule 14(4) of Rules of 1980, since the applicant was posted under the disciplinary control of the Deputy Commissioner of Police PCR as on 09.06.2005.
8. The applicant has further contended that respondents failed to notice that, in similar facts and circumstances, another Constable Satya Dev Singh had approached this Tribunal by filing OA No.1053/2004, which was allowed, vide order dated 13.08.2004. Further, the WP (C) No. 4431-33/2005 filed by the respondents in the Hon'ble High Court of Delhi was dismissed, vide judgment dated 21.04.2005. Even SLP filed by the respondents, in the Apex Court against the aforementioned judgment of the Hon'ble High Court of Delhi, was dismissed, vide order dated 21.11.2005.
9. The respondents have entered appearance and contended that order of acquittal of the applicant was not purely on merits. As such, further action was required to be taken under certain conditions as enumerated in Rule 12 of Rules of 1980, which gives liberty to the Head of the Office that if, in his opinion, the PWs have been won over, he may take action against the defaulter. In the instant case, the material witnesses had resiled from their statements and, therefore, disciplinary enquiry was ordered to be re-opened. Thus action has been taken within the ambit of the rules.
10. The respondents have further contended that this Tribunal, in its order dated 14.01.2004 in OA No. 1296/2003, had nowhere mentioned that the order of the respondents dated 31.12.2001 (supra) was quashed and set aside. The Tribunal had allowed the OA by quashing the impugned order, i.e. the punishment order dated 03.09.2002 and also the order of the Appellate Authority, and given liberty that DCP may pass fresh order in accordance with law. Subsequent action was taken by the respondents accordingly. The order of this Tribunal has been implemented in a proper manner and has not been misinterpreted as alleged.
11. The respondents have also contended that the plea of the applicant that respondent No. 3 was not his Disciplinary Authority, is not tenable. As per Circular dated 29.10.2004, if the Court does not quash the order of the disciplinary enquiry, Rule 14(4) of Rules of 1980 does not apply and subsequent action can be taken by the same authority, whose order has been set aside. Therefore, the punishment order is legal, speaking and correct and has been issued after due consideration.
12. In his rejoinder, the applicant has reiterated and elaborated on various averments made by him in the main application.
13. During oral arguments, Shri Anil Singal, learned Counsel for the applicant, and Shri Ajesh Luthra, learned Counsel for the respondents, reiterated the averments made in the pleadings.
14. We have heard the learned Counsel for the parties and perused the material on record.
15. The undisputed facts of the case are that the applicant was acquitted in the criminal cases registered against him. The main reason for his acquittal was that the PWs had turned hostile. Disciplinary enquiry was initiated against the applicant after registration of FIRs, but was kept in abeyance till the finalisation of criminal cases (Counter reply to para 4.2). Disciplinary enquiry was re-opened after applicant's acquittal in the criminal cases. A decision to re-open the disciplinary enquiry was taken by the respondents relying on the provision of Rule 12(b) of Rules of 1980, which 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: (b) in the opinion of the court, or on the Deputy Commissioner of Police the prosecution witnesses have been won over; or This Tribunal in OA No. 1296/2003 (supra), in the earlier round of litigation, while allowing the Original Application, quashed the impugned order.
16. The matter for consideration before this Tribunal in the present case, in view of the admitted facts aforementioned, narrows down to adjudicating, in effect, as to which order of the respondents was quashed by this Tribunal in OA No. 1296/2003 (supra) and its consequential impact on the orders impugned in the present OA.According to the applicant, this Tribunal, in OA No. 1296/2003 (supra) had quashed the order dated 31.12.2001, by which the disciplinary enquiry was re-opened. According to the respondents, it was the punishment order dated 03.09.2002, which was quashed.
17. Upon perusal of original file of OA No. 1296/2003 (supra) it is noticed that the applicant had sought quashing of the following orders therein: Thus, it is obvious that this Tribunal, vide order dated 14.01.2004 in OA aforementioned, had indeed, inter alia, quashed respondents order dated 31.12.2001 whereby the disciplinary enquiry was re-opened.
18. Even otherwise, upon a composite reading of the order of this Tribunal in OA No. 1296/2003 (supra), it is noticed that the said order addresses the sustainability of the order of respondents dated 31.12.2001, as follows: 3. Keeping the records straight, it would be appropriate to mention that with respect to the said incidence, a criminal case FIR No. 1082/97 pertaining to offence punishable under Section 392/365/34 Indian Penal Code had also been registered, besides FIR No. 1083/1997 with respect to the same offence. The applicant had been acquitted by the Court of the learned Additional Session Judge, Delhi and learned Metropolitan Magistrate, Delhi from the aforesaid criminal cases. During the pendency of the above said criminal cases, the disciplinary proceedings had been kept in abeyance. After the decision rendered by the two Courts referred to above, the disciplinary proceedings has been registered vide the order of the Deputy Commissioner of Police dated 31.12.2001 which reads: Now the above said criminal cases have been decided by the Hon'ble Court's Sh. HS Sharma, ASJ, New Delhi and Ms. Kamini Lau MM New Delhi vide their judgments dt.26.4.2001 and 23.7.2001 respectively in which the accused (HC Jag Saran No. 10170/DAP) has been acquitted in both cases due to PWs became hostile.
In view of above, I, P. Dass, DCP/9th Bn. DAP, Delhi to hereby order that the departmental enquiry against HC Jag Saran No. 10170/DAP which was held in abeyance is hereby reopened. The departmental enquiry is entrusted to Insp. Virender Singh who will conduct the same on day-to-day basis from prosecution stage and findings should be submitted to the undersigned at the earliest. The weekly progress report of the DE may also be sent to this office.
4. It is in pursuance of the above facts that the present controversy arises, namely, whether in face of Rule 12 of the Delhi Police (Punishment & Appeal) Rules 1980, the disciplinary proceedings in the facts of the present case could be initiated against the applicant or not.
5. Learned Counsel for the applicant contents that in the facts of the present case, the disciplinary proceedings could not be so initiated, while on behalf of the respondents, it has been urged that the present case falls within the ambit of Rule 12(b) of the above said Rules.
19. After reproducing Rule 12 of Rules of 1980, this Tribunal arrived at the following conclusions: 7. The above said rules clearly show that ordinarily when a police officer was tried and acquitted by a Court of law, he is not to be punished departmentally on the same charges. However, there are five exceptions that have been drawn to this general rule, namely, the criminal charge has failed on technical grounds; in the opinion of the Deputy Commissioner of Police, the prosecution witnesses have been won over; the Court has recorded that the offence was actually committed and the suspicion rests upon the police officer concerned; the evidence cited in the criminal case discloses that there should be a departmental action; or there being additional evidence available.
8. As already pointed above, the stress is on Rule 12(b) of the rules, as if in the opinion of the learned Deputy Commissioner of Police, who has already recorded that witnesses have been won over and, therefore, the departmental action could be initiated. We do not dispute that it is a subjective satisfaction of the Deputy Commissioner of Police concerned in this regard. But in the present case before us, the Deputy Commissioner of Police recorded that the applicant has been acquitted in the criminal cases because the witnesses turned hostile.
9. The expression that the witnesses 'turning hostile' as used in common parlance, is where they re-sile from their earlier recorded statements whether under Section 161 of the Code of Criminal Procedure or whatever statements that are so recorded. In every case, where the witness re-siles from his earlier recorded statements, it cannot be termed that he has been won over by the accused person in that controversy. Facts of each case have to be examined to come to such a conclusion. In one matter in which the applicant was the accused, i.e., FIR No. 1082/1997 Police Station : R.K. Puram, New Delhi decided by the learned Additional Session Judge, New Delhi the learned Additional Session Judge observed during the course of the decision that it was the investigating officer, SI, Sanjay Dutt who left no stone unturned to leave/provide some technical flaws in the prosecution case. In fact, the learned Additional Session Judge had recommended departmental action against the said investigating officer. In the subject matter FIR No.1083/1997, learned Metropolitan Magistrate, Delhi acquitted the accused for lack of evidence. There is no finding recorded that the witnesses have been won over by the accused. Therefore, merely because they did not support the prosecution case, it cannot be termed that in criminal cases the witnesses turning hostile would be a ground for this Tribunal to uphold the order of the Deputy Commissioner of Police that the witnesses were won over.
10. The language used by the learned Deputy Commissioner of Police is unambiguous. Therefore, the conclusion cannot be arrived at that the witnesses had been won over by the applicant.
11. In that event, learned Counsel for the respondents had drawn our attention to the decision of the Apex Court in the case Secretary, Ministry of Home Affairs and Anr. v. Tahir Ali Khan Tyagi in Civil Appeal No. 3865 of 2002 decided on 22.4.2002. Though at the first blush it appears that the findings are supporting the respondents version but a perusal of the decision reveals that it will not apply in the facts of the present case. The findings of the Supreme Court in the aforesaid case are: 7. That apart, the second part of Rule 12 of the rules, unequivocally indicates that a departmental proceeding could be initiated if in the opinion of the court, the prosecution witnesses are found to be won over. In the case in hand, the prosecution witnesses did not support the prosecution in the criminal proceeding on account of which the public prosecutor cross-examined them and therefore, in such a case, in terms of Rule 12, a departmental proceeding could be initiated. In this view of the matter, we are of the considered opinion that the tribunal committed error in interfering with initiation of a departmental proceeding and the High Court committed error in dismissing the writ petition filed.
We, therefore, set aside the impugned judgment of the High Court as well as that of the tribunal and direct that the departmental proceeding be concluded as expeditiously as possible.
12. These facts clearly show that the decision of the Supreme Court, as held, will not help the respondents. It was held that the Court should record such a finding. Such a finding has not been recorded in the present case. Therefore, the ratio deci dendi of the Supreme Court in the aforesaid case does not apply in the peculiar facts of the present case.
20. It is in this context that the final order of the Tribunal aforementioned was recorded in OA No. 1296/2003 (supra). Thus, this Tribunal gave a clear ruling that if the PWs turn hostile, it does not mean that the accused/delinquent can be automatically held responsible for winning over the prosecution witnesses in terms of Rule 12(b) of Rules of 1980.
21. The impugned order dated 09.06.2005, therefore, proceeds on a premise which is non sequitur, when it records as follows: In pursuance of CAT's judgment dated 14.1.04 the case has been re-examined which revealed that Hon'ble CAT while passing the judgment seems to have laid more emphasis on the contents of the re-opening order wherein a mention has been made against the acquittal of HC in criminal cases due to PWs turning hostile. In fact the DE was opened on the acts of unbecoming of a police personnel committed by the HC on two occasions in a same day which were later on ended with the registration of two criminal cases against the HC, and not on the basis of witnesses turning hostile and on the similar set of allegations the charge was served upon, after the finalization of both criminal cases, and accordingly the punishment was awarded on the basis of logical conclusion drawn by the E.O. The re-opening order was a limited to set the process of conducting the D.E. In view of above, I the undersigned deems it fit that the HC deserves for major punishment commensurating to the quantum of misconduct as it will not only works as a deterrence, also would extend help in minimizing such type of incidents in future by the protectors. As such I, the Dy. Commissioner of Police, 9th Bn. DAP hereby award the punishment forfeiture of five years approved service permanently entailing reduction in his pay from Rs. 3880/- to Rs. 3445/- to be effected from 3.9.2002 and his suspension period is also treated as period "Not spent on duty" and is not being regularized in any manner.
22. The respondents have given a satisfactory explanation for continuing respondent No. 3 to deal with the disciplinary enquiry against the applicant (para 4.7 of counter reply), which has not been challenged/rebutted by the applicant in his rejoinder.
23. The applicant has cited the case of Constable Satya Dev Singh (supra) in support of his contentions. However, the facts of that case are different, even though this Tribunal, as well as the Hon'ble High Court of Delhi, did examine the ambit of Rule 12(b) in that case. The applicant in the case aforementioned was acquitted on the ground that the prosecution had failed to bring home the charge against the respondents, and not on the ground of PWs turning hostile. Similarly, this Tribunal had held that it cannot be said that all the witnesses had been won over; rather the complainant had supported the prosecution version, but was not believed.
24. Taking the totality of facts and circumstances of the case into consideration, we come to the inevitable conclusion that the impugned orders of the respondents are misconceived inasmuch as they are founded on misinterpretation of Rule 12(b) of Rules of 1980. The order of this Tribunal in OA No. 1296/2003 (supra) enjoined upon the respondents to proceed strictly within the four corners of Rule 12 of Rules of 1980.
The applicant having been acquitted by the Criminal Court cannot be punished departmentally on the same charge or on a different charge upon the evidence cited in the criminal cases unless one of the five exceptions mentioned in Rule 12 ibid. is squarely applicable to the case. It is, therefore, not at issue, as mentioned in the impugned order dated 09.06.2005 (supra), whether the act of the applicant relating to the criminal cases was unbecoming of a police personnel or not. What is important, therefore, is the ground taken by the respondents in terms of the exceptions, mentioned in Rule 12 of Rules of 1980 and relied upon by the respondents, while initiating/continuing with disciplinary enquiry. After reopening the disciplinary enquiry, admittedly in terms of Rule 12(b) of Rules of 1980 and upon this Tribunal, in OA No. 1296/2003 (supra) giving a clear finding that the said provision was not applicable to the facts and circumstances of the case, the respondents cannot now turn around to argue that it was done on some other ground, when the only ground on which the enquiry could be sustained has to be within the four corners of Rule 12 of the Rules of 1980. This conclusion is supported by a conjoint reading of Rules 11, 12 and 17 of the Rules of 1980.
25. In the result, the OA is allowed. The impugned orders dated 09.06.2005 (Annexure A-1) and 23.06.2006 (Annexure A-2) are quashed and set aside. The applicant shall be entitled to all consequential benefits, including regularisation of his period of suspension, as per rules. This exercise shall be completed within a period of three months from the date of receipt of a certified copy of this order. There shall be no order as to costs.