| SooperKanoon Citation | sooperkanoon.com/55098 |
| Court | Central Administrative Tribunal CAT Delhi |
| Decided On | Dec-07-2006 |
| Judge | B Panigrahi, A A V.K. |
| Appellant | Nagender Singh, Ex. Constable of |
| Respondent | Govt. of Nct of Delhi Through |
2. Respondents have filed their reply wherein they have stated that the applicant while working as a Constable was deputed on duty at Taj Man Singh Hotel on 31.12.96 in connection with the visit of VVIP, Israel.
However, he failed to deposit the service pistol No. 1517-3514-DP No.117 and ammunition in the Kot of Main Security Line after performing his duty. These were obtained by the applicant from the Kot for performing the above duties. The applicant was contacted at his residence and brought to the Main Security Line for enquiry. Even on enquiry, he did not divulge about the whereabouts of the said pistol and ammunition. In this connection, apart from taking action against the delinquent for his misconduct, dereliction in duty and casual attitude, the respondents simultaneously decided to register an FIR under Section 409 IPC. The disciplinary enquiry was entrusted to Inspector D.N. Kaushik, who conducted part of the enquiry. In the meantime, the applicant was transferred and the enquiry was entrusted to one Inspector M.S. Sangha, who after examining the witnesses for prosecution and defence, held the applicant guilty for the misconduct in not returning the service pistol and ammunition.
3. The disciplinary authority, after carefully going through the findings of the enquiry officer, statement of witnesses, representation submitted by the applicant and other material available on record, agreed with the observations of the enquiry officer and imposed the punishment of dismissal from service. The applicant made an appeal to the appellate authority but the same was rejected on 5.2.99.
Thereafter, he filed a revision petition which was not entertained by the Commissioner of Police, Delhi as he had no revisionary powers. The applicant filed an O.A. No. 3057/2001 which was dismissed by the Tribunal vide order dated 9.4.2002. Thereafter, the applicant made another representation against the punishment of dismissal which was not considered as this Tribunal had already held that Rule 25 of Delhi Police (Punishment & Appeal) Rules, 1980 was ultra-vires to the provisions of Delhi Police Act, 1978. The applicant was accordingly informed by the impugned order dated 15.3.2005.
4. Shri Singal, learned Counsel appearing for the applicant has very strongly contended that the disciplinary authority has committed a grave error in not awaiting the outcome of the criminal proceedings and simultaneously proceeding with the departmental proceedings. He contended that since the facts involved in the departmental proceedings and criminal proceedings were identical and inextricably intertwined, therefore, the disciplinary authority should have waited till the result of the criminal case. Criminal proceedings registered under Section 409 IPC in FIR No. 2/97 culminated in acquittal of the applicant. Thus as per Rule 12 of Delhi Police (Punishment & Appeal) Rules, the disciplinary authority should have recalled the dismissal order and reinstated the applicant into service. In the fitness of things, it is submitted that the applicant may forgo his past salary but other service benefits be extended to him. In support of his contention, Shri Singal strongly relied upon the judgment in the case of G.M. Tank v. State of Gujarat and Anr. , wherein the Hon'ble Supreme Court held that there was no iota of evidence against the appellant to hold him guilty of having accumulated excess income by way of gratification. The respondents failed to prove the charges leveled against the appellant.
5. From the summary of facts collected in the above case, it is gathered that the departmental proceeding was initiated against the appellant therein on the ground of misconduct for acquiring disproportionate assets and simultaneously the criminal proceedings. In the criminal proceedings, no evidence whatsoever was led against the appellant, which resulted in his acquittal. Let us, now, examine whether the fact situation of the cited case is similar to that of the present case.
6. In the present case, there is no dispute that the applicant was given the service pistol along with certain ammunition while he was deputed for VVIP duty at Taz Man Singh Hotel. It is further not controverted that he did not return the pistol and ammunition after finishing his duty. Therefore, the applicant was obliged to prove satisfactorily as to where he kept the service pistol and ammunition after he finished his duty. In the criminal proceedings, we find that the court held that there was no element of "dishonesty and misappropriation". Therefore, the said element of charge having not been proved, the applicant was found not guilty. In order to appreciate the contention of Shri Singal, learned Counsel for the applicant, we quote the observations of learned Metropolitan Magistrate in the aforesaid criminal case, which read as under: 6. I have carefully gone through the entire evidence of the prosecution. There is not even a single witness who stated anything about dishonest intention, dishonest misuse of the pistol which was handed over to the accused. All the witnesses are coming and in routine manner have stated that the pistol was handed over to the accused. However, none of the witnesses has stated anything about crucial aspect of dishonesty on the part of the accused. In this case, the IO PW-10 in his cross examination has admitted that there was an opinion sought from the Prosecution Branch wherein it was opined at the then Chief Prosecutor that there was no case of misappropriation against the accused. He had further admitted in cross examination that pistol could not be recovered despite his best efforts and as per his investigations no criminal or dishonest intention or misappropriation was found on the part of the accused.
In this case, the accused in cross examination of PWs has tried to show that he had lost pistol and apparently it is seen that he had cross examined on the point of his being medically examined. From the evidence, it seems that accused under the influence of liquor, lost the pistol. However, DD entries in this case wherein explanation of the accused was also recorded had been destroyed and has been lost, IO admitted that accused was not medically examined.
From the observations quoted above, it is clear that it was not a case of no evidence, rather the evidence had been led in. But since the element of dishonest intention was not proved, the benefit was extended to the accused. Therefore, the judgment cited by Shri Singal, learned Counsel for the applicant in the case of G.M. Tank (supra) does not come to the rescue of the applicant.
7. Shri Singal, learned Counsel relied upon another judgment reported in 2003 (1) SCT 920 (P&H) in the case of Sushil Kumar v. Food Corporation of India and Ors. We find that the fact situation of that case is also completely distinguishable from the present case. In a departmental proceeding, dishonest intention is hardly necessary to prove the element of charge. The charge against the applicant had been framed on the following grounds: I, D.N. Kaushik, Insp., Enquiry Officer charge you, Constable Nagender Singh 99/SCC that when detailed for duty at Taz Man Singh Hotel on 31.12.96 in connection with the visit of V.V.I.P. Isryl, you did not deposit the service pistol No. 1517, 3514 DP No. 1117 and ammunition in the kot of main security line after performing duties which arms and ammunition mentioned above was obtained by you from the kot for the performance of above duties. You were contacted at your residence and brought to main Section Line for enquiry and even on enquiry you did not reveal about the whereabouts of the said pistol and ammunition. In this connection the Case FIR No. 2/97 Under Section 409 IPC was got registered at P.S. Chanakyapuri, New Delhi.
The above act on your part amounts to grave misconduct, carelessness, dereliction in the discharge your official duties and unbecoming of a police officer, which render you liable to be dealt with departmentally in accordance with Section 21 of D.P. Act, 1978.
8. In the disciplinary enquiry, many witnesses had been examined. The applicant never disputed that he did take the pistol and ammunition at the time of performing duty and further he admitted to have failed in returning the said pistol and ammunition. In the charge quoted above, it is clearly stated that for misconduct and negligence in not returning the pistol and ammunition, he was proceeded against, which has got nothing to do with registration of case under Section 409 IPC.9. In this case, clear evidence has been led in as regards culpability of the applicant, which has not at all been refuted by him. The question which arises for consideration here is as to whether the applicant could be reinstated in service merely because he has been acquitted in the criminal case.
10. Learned Counsel appearing for the applicant placed strong reliance on Rule 12 of the Delhi Police (Punishment & Appeal) Rules which is quoted hereunder: 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 (c) the court has held in its judgment that an offence was actually committed and that suspicion rests upon the police officer concerned, or (d) 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 11. From reading of the above rule, it is gathered that if the evidence cited in the criminal case discloses facts unconnected with the charge before the court which justify departmental proceedings on a different charge, then notwithstanding acquittal of the accused, there would be no bar for the authorities concerned to punish the delinquent departmentally.
12. In this case, as stated above, the accused applicant was acquitted of the charges only on the ground of non-production of evidence of dishonest intention. But in the disciplinary proceedings, question of misconduct arises on the ground of carelessness in not returning the pistol and ammunition. It was a service pistol which was given to him while performing duty. There is no specific explanation whatsoever as to what happened to that pistol and ammunition. Therefore, Rule 12 of the aforesaid Rules will not come to the rescue of the applicant.
13. Shri Singal, learned Counsel has also relied upon an order of this Tribunal in O.A. No. 2076/2000 (Narender Kumar v. Govt. of NCT of Delhi and Ors.) decided on 3.8.2001. This Tribunal relying on ratio of the judgment in Captain M. Paul Anthony v. Bharat Gold Mines Ltd. and Anr.
, held that once the criminal court acquitted a Government servant from the criminal charges, the findings arrived at by the departmental authorities would not stand. It was explained subsequently in a later judgment in theHindustan Petroleum Corporation Ltd. and Ors. v. Sarvesh Berry, wherein the Hon'ble Supreme Court held: 8. The purposes of departmental enquiry and of prosecution are two different and distinct aspects. Criminal prosecution is launched for an offence for violation of a duty the offender owes to the society, or for breach of which law has provided that the offender shall make satisfaction to the public. So, crime is an act of commission in violation of law or of omission of public duty. The departmental enquiry is to maintain discipline in the service and efficiency of public service. It would, therefore, be expedient that the disciplinary proceedings are conducted and completed as expeditiously as possible. It is not, therefore, desirable to lay down any guidelines as inflexible rules in which the departmental proceedings may or may not be stayed pending trial in criminal case against the delinquent officer. Each case requires to be considered in the backdrop of its own facts and circumstances. There would be no bar to proceed simultaneously with departmental enquiry and trial of a criminal case unless the charge in the criminal trial is of a grave nature involving complicated questions of fact and law.
Offence generally implies infringement of public duty, as distinguished from mere private rights punishable under criminal law. When trial for criminal offence is conducted it should be in accordance with proof of the offence as per the evidence defined under the provisions of the Indian Evidence Act, 1872 (in short "the Evidence Act"). Converse is the case of departmental enquiry. The enquiry in departmental proceedings relates to conduct or breach of duty of the delinquent officer to punish him for his misconduct defined under the relevant statutory rules or law. That the strict standard of proof or applicability of the Evidence Act stands excluded is a settled legal position. Under these circumstances, what is required to be seen is whether the departmental enquiry would seriously prejudice the delinquent in his defence at the trial in a criminal case. It is always a question of fact to be considered in each case depending on its own facts and circumstances.
Kumar Nag v. General Manager (Pj), Indian Oil Corpn. Ltd., Haldia and Ors., the Hon'ble Supreme Court held in the following manner: 11. As far as acquittal of the appellant by a criminal court is concerned, in our opinion, the said order does not preclude the Corporation from taking an action if it is otherwise permissible. In our judgment, the law is fairly well settled. Acquittal by a criminal court would not debar an employer from exercising power in accordance with the Rules and Regulations in force. The two proceedings, criminal and departmental, are entirely different. They operate in different fields and have different objectives. Whereas the object of criminal trial is to inflict appropriate punishment on the offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with the service rules. In a criminal trial, incriminating statement made by the accused in certain circumstances or before certain officers is totally inadmissible in evidence. Such strict rules of evidence and procedure would not apply to departmental proceedings. The degree of proof which is necessary to order a conviction is different from the degree of proof necessary to record the commission of delinquency. The rule relating to appreciation of evidence in the two proceedings is also not similar. In criminal law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused "beyond reasonable doubt", he cannot be convicted by a court of law. In a departmental enquiry, on the other hand, penalty can be imposed on the delinquent officer on a finding recorded on the basis of "preponderance of probability". Acquittal of the appellant by a Judicial Magistrate, therefore, does not ipso facto absolve him from the liability under the disciplinary jurisdiction of the Corporation. We are, therefore, unable to uphold the contention of the appellant that since he was acquitted by a criminal court, the impugned order dismissing him from service deserves to be quashed and set aside.
15. From the ratio of the above judgment, no element of doubt arises that merely because the learned Magistrate acquitted the accused and absolved him of the charges, that by itself ipso facto shall not absolve him from being proceeded with departmentally. In this case, the charge in the criminal proceedings as well as in departmental proceedings were distinct and separate. Facts may be intermingled but the element of charge was separate. The disciplinary authority, therefore, was justified in passing the order of dismissal. The matter was taken in appeal but the same was also dismissed. Thereafter revision petition was also rejected.
16. After such length of time, it would be inappropriate for us to again go into the question of validity of punishment. Accordingly, there being no merit in the application, it is dismissed.