Sanjay Verma vs Delhi Police And Ors

R.N. Singh, J

The present application has been filed by the applicant to challenge the order dated 12.04.2013 (Annexure `A') vide which the Disciplinary Authority (DA) has inflicted the penalty of dismissal of the applicant from service with immediate effect and another order dated 14.08.2013 (Annexure `B') passed by the Appellate Authority (AA) vide which the applicant's appeal against the order of the DA dated 12.04.2013 has been rejected.

The undisputed facts leading to the present OA are that the applicant was working as Sub-Inspector under the respondents and during his such employment, a case bearing No.RC-DAI-2001-A-0067 dated 26.09.2001 was registered by the CBI authorities against him under Section 7 of Prevention of Corruption (POC) Act, 1988. Another case on the complaint of one Inspector U.K. Goswami, CBI/ACB vide FIR No.399 dated 26.09.2001 was registered against the applicant with Police Station Tilak Marg, New Delhi under Section 21/61/85 NDPS Act.

The applicant was suspended with effect from 26. 09.2001 for being arrested in the case dated 26.09.2001 under Section 7 of the POC Act 1988 vide order dated 28. 09.2001. He was convicted under Section 7 of the aforesaid Act by the Court of competent jurisdiction. Criminal appeal no.365/2007 filed against such conviction was admitted by the Hon'ble High Court of Delhi and the sentence of the applicant was suspended till disposal of the appeal and the applicant was granted bail by the Hon'ble High Court vide order dated 13.02.2008.

During the pendency of the aforementioned appeal, the applicant was dismissed from service by the respondents. He approached this Tribunal in OA No.3470/2009 against the said order of dismissal. The Tribunal quashed the dismissal order and the applicant was ordered to be reinstated as under suspension vide Tribunal's order dated 2.12.2009 (Annexure `C').

The respondents contemplated departmental proceedings against the applicant vide order dated 14.11.2011. However, the same was withdrawn by them vide order dated 19.03.2013. Another order was passed by the competent DA for initiation of departmental proceedings against the applicant, in view of his involvement in the alleged offences under NDPS Act for which a case FIR No.399/2001 dated 26.09.2001 was registered against the applicant. This departmental proceeding culminated into the impugned disciplinary order dated 12.04.2013 and impugned appellate order dated 14.08.2013.

Subsequently, the applicant was acquitted by the Court of learned MM, New Delhi in case FIR No.399/01, P.S. Tilak Marg under Section 21 (a) NDPS Act vide order/judgment dated 4.03.2014 (Annexure `G'). In view of such acquittal, the applicant submitted a representation dated 24.03.2014 enclosing therewith the order dated 4.03.2014 of the learned MM, requesting therein for his reinstatement with all back wages and benefits of pay scale (Annexure `H'). However, the same was not acceded to by the competent authority holding the same to be not maintainable in view of rule 23 (2) of Delhi Police (Punishment and Appeal) Rules 1980, on the ground that the applicant has already exhausted the departmental remedy of filing an appeal against the said punishment order and, thereby, upholding the order of dismissal dated 12.04.2013 and appellate order dated 14.08.2013. The applicant was informed of such decision vide order dated 29.04.2014 (Annexure `I').

In the aforesaid background, the applicant has prayed for the following reliefs:

"a) Quash the impugned order dated 12.04.2013 passed by A.S. Cheema, Dy. Commissioner of Police Spl. Branch, Delhi

b) That quash the order dated 14.08.2013 passed by K.C. Dwivedi Add. Commissioner of Police Spl. Banch, Delhi, in which the appeal of applicant was dismissed.

c) Reinstate the applicant with back wages and grant all the service benefits to the applicant."

In response to the notice issued from this Tribunal, the respondents have filed counter affidavit wherein the aforesaid facts have not been disputed. However, the respondents have stated that the applicant's representation dated 24.03.2014 for reinstatement in view of his acquittal by the Court of learned MM through order dated 4.03.2014, was not found maintainable in view of rule 23 (2) of the aforesaid Rules as the applicant had already exhausted the departmental remedy by preferring an appeal against the order of dismissal dated 12.04.2013 and, on his appeal, the AA has affirmed the order of dismissal vide order dated 14.08.2013.

The applicant has filed rejoinder wherein he has more or less reiterated the submissions made by him in OA.

We have heard the learned counsel for the parties.

Learned counsel for the applicant has argued that in view of rule 12 of Delhi Police (Punishment and Appeal) Rules 1980, the respondents were duty bound to revisit the impugned orders of penalty dated 12.04.2013 and 14. 08.2013. In this regard, the learned counsel for the applicant places reliance on the judgment of a DB of Hon'ble High Court of Delhi in George N.S. Vs. Commissioner of Police reported in 183 (2011) Delhi Law Times 226 (DB). He invites our attention to para 8 to 10 of the judgment, which are quoted hereinbelow:

"8. The Rule 12 of the Rules reads 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;

(a) the criminal charge has failed on technical grounds; or

(b) in the opinion of the court, or 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

(e) additional evidence for departmental proceedings is available."

From the plain reading of the aforesaid Rule, it would be clear as to what is prohibited is that when a police officer is 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 the same was actually led or not. However, there were few exceptions to the said prohibition. One of those being that if the criminal charge has failed on technical grounds and the second being that additional evidence was available in the departmental proceedings. As per the interpretation of both these Exceptions as provided in Clauses (a) and (e) as enumerated above, what needs to be considered is as to whether the case of the petitioner will fall in any of the two clauses namely whether he was acquitted on technical ground or whether there was some additional evidence available in the departmental proceedings, which was not available before the criminal court. If the case falls under any of the two, then these exceptions would apply and the departmental proceedings would be maintainable, even if the petitioner stood acquitted by the criminal court.

Rule 12 of the 1980 Rules came up for interpretation before a Division Bench of this Court in Government of NCT of Delhi and Ors v Rajpal Singh. The Hon'ble Bench dealing with the issue held that in terms of Rule 12, a delinquent officer cannot be punished departmentally if on the same charge he has been acquitted by a criminal court. The Bench also referred to Section 21(3) of the Delhi Police Act and in terms thereof held that criminal prosecution is not barred even if the delinquent officer is departmentally proceeded with, though it was a case where the criminal court had acquitted the accused respondent. It was further observed that the power for initiation of departmental proceedings could be exercised by the appellants only when any of the exceptions as provided in Rule 12 is satisfied, and that there could be no two opinions to the fact that both departmental and criminal proceedings can be initiated simultaneously. But so far as a constable of Delhi Police is concerned, it was observed, there is a specific statutory rule which bars initiation of departmental proceedings after acquittal in a criminal case to which certain exceptions are provided in the nature of Clauses (a) to (e) and, therefore, under the substantive provision, no departmental proceedings could be initiated once the respondent was acquitted by the criminal court. This view was reiterated by this Court in its decision dated 21.4.2005 in Writ Petition (C) No. 4431 to 4433 of 2005 in the matter of Government of NCT of Delhi and Ors v Satya Dev Singh. Petition for Special Leave to Appeal filed against the judgment of this Court was dismissed by the Hon'ble Supreme Court vide order dated 21.11.2005."

He contends that in view of the provisions of rule 12 of Delhi Police (Punishment and Appeal) Rules 1980 and the principles of law settled by the Hon'ble Delhi High Court in George N.S. (supra), the order dated 29.04.2014 (Annexure `I') and action of the respondents in refusing to revisit the impugned order of dismissal are bad in the eyes of law.

Per contra, the learned counsel for the respondents submits that once the order of the DA has been affirmed in the appellate order, the applicant's representation dated 24.03.2014 was rightly found not maintainable in view of the provisions of rule 23 (2) of Delhi Police (Punishment and Appeal) Rules 1980.

We have considered the pleadings on record and submissions made on behalf of the parties and the judgment of the Hon'ble Delhi High Court in George N.S. (supra).

We find that the applicant has not challenged the respondents order dated 29.04.2014. However, the sum and substance of the present OA is that subsequent to his acquittal by the learned MM, New Delhi vide order dated 4. 03.2014 in case FIR No.399/01, the applicant prayed for revisiting the impugned order of penalty dated 12.04.2013, which has been rejected by the respondents and, therefore, the applicant has approached this Tribunal.

In the judgment of the Hon'ble High Court in George N.S. (supra), it is ruled that a delinquent officer cannot be punished departmentally if on the same charge, he has been acquitted by a Criminal Court in view of the provisions of rule 12 of Delhi Police (Punishment and Appeal) Rules 1980. We may also refer to a judgment of Full Bench of this Tribunal in Sukhdev Singh, ASI & Anr. Vs. Govt. of NCT of Delhi through Commissioner of Police, reported in 2011 SCC Online CAT 4238. In para 9 thereof, this Tribunal held as under:

"9. In view of the discussion made above, we hold that there is no bar, express of implied, in the Rules of 1980 for holding simultaneous criminal and departmental proceedings. However, in case departmental proceedings may culminate into an order of punishment earlier in point of time than that of the verdict in criminal case, and the acquittal is such that departmental proceedings cannot be held for the reasons as mentioned in rule 12, the order of punishment shall be re-visited. The judicial verdict would have precedence over decision in departmental proceedings and the subordinate rank would be restored to his status with consequential reliefs."

In view of the facts involved and judgment of the Hon'ble High Court in George N.S. (supra) and also the judgment of Full Bench of this Tribunal in Sukhdev Singh (supra), we are of the considered view that on acquittal of the applicant vide order/judgment dated 4.03.2014 in case FIR No.399/01, the respondents were duty bound to revisit the impugned disciplinary and appellate orders dated 12.04.2013 and 14.08.2013 and, it is incorrect at their end, to hold in their letter dated 29.04.2014 that the representation dated 24.03.2014 is not maintainable.

In view of the aforesaid, the OA is partly allowed with direction to the respondents to consider the applicant's aforesaid representation dated 24.03.2014 (Annexure `H') afresh keeping in view the judgment of the Hon'ble High Court in George N.S. (supra) and the judgment of the Full Bench of this Tribunal in Sukhdev Singh (supra) and pass appropriate speaking order within 10 weeks of receipt of a certified copy of this order. There shall be no order as to costs.