Gnct of Delhi and Ors v. Ramesh Kumar

f a. r3 .") -'l- $- 7* IN TIIE HIGH COURT OF DELHI AT NEW DELI{I w.P.(o 1696/2011 I)ecision : 7fl' December. 20L1 GNCT OIr DIILIII AND ORS ..... Petitioner Through : Mr. Bhupesh Narula, Adv. VEfSUS RAMI,SII KIJMAI{ ..... Respondcnt Ihrough : Mr. V.K.Rao, Sr. Adv. with Mr. Ayushya Kumar, Adv. COIIAM: IION'I}LE MS. JUS'IICE GITA MITTAL HON'BLE MR. JUSTICE J.R. MIDHA Gita Mittal, J(Oral)

¶1'l'he prcscnt writ pctition assails thc judgment datcd 25tr' May, 2010 passed by the principal bench o1'the Central Administrhtive Tribunal in 0;\ No.2I09i2009 cntitled l{arnesh l(urnar vs. (iovcrnrtent of NCT of Deljri & Ors.

¶2'Io the cxtent neccssary, thc facts giving rise to thc present pctition arc bricf1 y noti ccd hcrcafler. 't'hc'pctitioner had bccn appointcd as a Constable with thc Dclhi Polics in which position he was working whcn on 30'l' April, 1993 he rvas ll''.P.((') !*o.169(t..)0tt ptqc t o!9 Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. irnplicated in IrlR No.142193 under Section 3231341134 IPC for intentionally chasing, dctaining and bcating a Sikh gentlcman attached as a Wireless Opcrator to a political lcadcr as part of the protection afforded to him. It is an adrnitted position that on the same set of facts, the respondent was placed trndcr suspcnsion and on 3'd Muy, 1993 a departmental inquiry was initiated against the pctitioner. Aflcr conclucting the inquiry, an inquiry report dated 15tl' Scptcmbcr, 1993 was submittcd by the inquiry officer.

¶3It is not disputed before us that by an order passed on 28tL October, 1993, thc departmental proceedings wcre kept in abeyance fr'orn this stagc till conclusion of the crirninal casc arising fiom the above noted criminal cornplaint. On 4tr' March, Igg4, the respondent's suspension was also revoked. 1he name of the respondent however continued to be rctained on the doubtful intcgrity list rnaintaincd by fte petitioners.

¶4Pursuant to directions dated Tttt July, Igg8, the disciptinary proceedings against thc rcspondcnt wcrc rcopened. A copy of the inquiry report datcd.l5tr' September, 1993 was duly furnished to the respondent. 'Ihe respondent was also'servcd with a show cause noticc datcd 22"d JuIy, 1998 to show cause as to why should the period of suspension not be trcated as pcriod trot spcnt on duty. I'he respondent participated in thcsc procecdings and subrnitted a reprcsentation dated 11tl'August, 1998 against thc findings of thc inquiry officcr.

¶5Aftcr considcring the entircr rnaterial placed beforc it, thc disciplinary authority passed an order dated 23'd Octobcr, 1998 imposing the pcnalty of foribiture of two ycars approved service permanently entailing a proporlionate rcduction in thc rcspondent's pay by two stages fiom W.P.(() lio.t696t:0i t page 2 of9 Its.3575l-to Rs.34251-per rnonth in the time scale for a period of two years. It may be noted that by an order dated 26'r'July, Iggg, thc petitioncr also continued the name of the respondent in a secret list of doubtful integrity with ef'fect from 3'd May, 1993 for a period of two years.

¶6Thc rcspondcnts on 27't'November, 1999 assailed the above order by way of the statutory appcal which was rcjected by an order passed on 19th August, 1999 by the appellate authority.

¶7fhe petitioner acccptcd thc ordcrs passed against hirn and raiscd no challenge thereto.

¶8It appcars that almost after a decadc thcrcafter, by a judgrnent dated 12tr' March, 2008, the prosecution against the respondent rcsulted in a judgmcnt of acquittal on the ground that the prosecution failed to provc the case against the respondent bcyond thc rcasonablc doubt.

¶9ll-he respondent now colnmenced his agitation against the orders of the penalty irnposed in the disciplinary proceedings. For the first time sirice being punished, he rnade a representation on 4tt' June, 2008 to the Cornmissioner of Police against the orders dated 23"1 October, 1998 and 19th August, 1999 passcd by thc disciplinary Td appcllate authorities rcspectively. FIe thereafter issued a remindcr on 22"d October, 2008 seeking consideration of his rcprcsentation. 'fhe respondent's representation was returned by the order datcd 30tr' March, 2009 as not maintainable. It is noteworthy that in this regard, reliance was placed on the instructions of the police headquarlers dated 28tl'May, 200I.'

¶10Thc respondent clairns that he has received copy of thc ordcr dated 30fl' March,2009 only on 2nd July, 2009. In this background, the rcspondent took steps invoking jurisdiction of the Central Adminislrative lt'. P.(C) i'a. I 696/20 I I page 3 of9 ( l'ribunal by filing OA No.2l0gl200g on 13tr' Jrly, 2009 sc-c.king a declaration that the ordcr dated 12'h March, 2008 ; orderS of punishffIent dated 23"r October, 1998 and the appellate order dated 19tr' August, 1999 were illegal and invalid.

¶11The petitioner contcstcd thesc proceedings. Ilowcvcr, by thc judgnrent dated 25'r' May , 20L0, the Central Adrninistrative 'I'ribunal was pleased to allow the challcngc by thc respondent and has set asidc ,the impugnecl orders placing rcliance on Rule 12 ofDrehi Police (Punishrneht ancl Appeal) Rules, 1980 granting libeAy to the disciplinary authority !o exarninc thc judgrncnt oIthe trial court and to take a final decision as pgr t"hg judgment of thc trjal courl within 4 lcriod of three months fiom the datc of rc.ceipt of thc ordcr.

¶12We have heard learned counsel for the parties at lenglh. Apart !'om th,e,several otller glounds of challenge raised by the petitioner, wc find that the p:'cscnt writ pctition can be disposed of on the piirndpy,grbupcl'prep.sed on, behalf of the petitioner which is premised'on thc statutory bar of limitation to a challenge which could bei'aised in the Central Administrative ittibunat Act, 1985. rlhis objcction was urgcd betbie th'e tribr-rnal as well.' 13 r Mr. V.K. Rao, learned senior counscl for the respondcut contendq fhat' ti'hc causc.of action to challengc the disciplinary proceedings against thc respondent in fact arosc in his favour only on 12th March, 2008. when the rcspondent was acquitted in the crirninal trial.

¶14We frnd that thc Tribunal lras placccl ieliance on Rule 12 ofthc Delhi Policc (Punishrnent and Appeal) Itulcs, i1980. to adjudiqal.i upoq this objection. This dr:legatcd lcgislation would gulAb adjudication on the issue tr.P.(c) No.l696/2011 pagc 4 o.f 9 under consideration. In this behalf, the provision of Rule 12 deserves to be extracted in extenso and the same reads as follows :-,,12, t\cLion following judicial acquitlal -when a policc officsr has been tried and acquitted by a criminal courl, he shall not bc punished deparlrnentally on the same chargc or on a diffcrcnt charge upon the evidence cited in the criminal case, whethcr actually led or not unless :-

(a) the crirninal charge has failcd on tcchnical grounds, or

(b) in the opinion of the cour1, or on the Deputy Commissioncr of Police the prosecution witnesses have been won over; or (.) the court h4s held in its judgrnent that an offcncc was actually cornmitted and that suspension rests upon the policc officcr concemed; or

(d) the evidence cited in the criminal case discloscs facts unconnected with the charge before the coutt which justify departrnental proceedings on a different charge; or (") additional evidence or depaftmental proceedings is availablc."

¶15A barc reading of the rulc 12 would show that thc rule woulcl coille into play afler a police o'fficer has been tried and acquiued by the crirninal courl.

¶16Application of Rule 12 of the case in hand would show that sub-rulc

(a) of Itulc 12 of the said Itules confers discretion on the authority to consider whelher thc crirninal charge has failed on technical grounds. In the case in hand, the respondent stands acquitled on the ground that the prosecution failed to prove the charge beyond reasonable doubt.

¶17Mr. Ilhupesh Narula, learned counsel for the petitioner has drawn our attention to the pronouncernent of this courl reporled at 100 (2002) DLT 385 Government oJ' NCT of Delhi & Ors. ys. Raipal Sirtglt whcrcin this vcry rule arose for consideration and the court ruled as reading of the rulc 12 would show that thc rule would tv.P.(C) No.t696/2011 page 5 oJ9 follows:- "18. Even assuming that Rule 12 as afore-mentioned, is attracted, Clausc (a) thereof rnakes out an exception as regards applicability of thc Itule in a casc wherc the criminal charge has failed on technical grounds.

¶19Furlhermore, it is well settled that the standard of proof in a criminal case and domcstic enquiry is diffcrcnt.

¶20A departmental proceeding is also maintainable where additional evidence for deparlmental proceedings is available.

¶21The lealned Tribunal, unfoffunately, has not considered this aspect of the matter in its irnpugned judgment. It is now a well-settled principle of law that while interpreting a Rule, the basic principles of law should be borne in mind. lhe effect of thc dcparttncntal proceedings on an acquittal made in a crirninal chargc fell for consideration before thc apcx court in Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. and Anr., MANLJ/SC10225/1999:

(1999)I,LLJ1094SC . Thc apcx court in the said decision upon taking into consideration a large number of its earlier decisions, hcld: "13. As wc shall prcscntly see, there is a consensus ofjudicial opinion amongst thc High Courts whose decisions we do not intend to refer in this case, and the various pronouncctncnts of this Cour1, which shall be copiously referred to, on thc basic principle thal proceedings in a criminal case and the departmental proceedings can proceed sirnultaneously with a little exception. As we understand, the basis for this proposition is that proceedings in a criminal case and the departmental procccdings operatc in distinct and different jurisdictional areas. Whereas in the deparlmental proceedings, where a charge relating to misconduct is being investigated, thc factors opcrating in the rnind of the Disciplinary Authority may bc many such as enforcement of discipline or to invcstigate thc level of integrity of the delinquent or thc other staff, the standard of proof rcquircd in the those proceedings is also different than that required in a crirninal case. Whilc in the W.P.(C) No.t696l20t I Page 6 ot9 lo departmental proceedings the standard of proof is one of ?1 prcpondcrance of the probabilities, in a criminal case, the charge has to be proved by the prosecution beyond leasonable doubts. The little exception may be where the departmental procecdings and thc crirninal case are based on the same set of facts and thc cvidence in both the proceedings is common without there being a variance.

¶22Rule 12 ofthc said Rules should also be interpreted having regard to thc aforementioncd dicta of the Apex Cour1.

¶23Furthcrmore, cvcn assuming that two interpretations are possiblc, it is now well known that the interpretation which would give effect to the objcct and purport of thc Act should be favored by taking recourse to the doctrine of purposive construction. So construed. we arc of the opinion that I{ulc 12 would not be attracted when an order of nishmcnt had al thc iuds.ment of acquittal was rendered in'favor of the respon ." (Emphasis supplied) It is trite that mere comrlencement of criminal proceedings would not intcrdict deparlrncntal proceedings and it is open to the disciplinary authority to procced against a person in disciplinary action evcn though thc criminal case is pending. It is eclually well settled that this dicturn rests on the principle that the proof in the two proccedings is diffcrent and that othcr factors including enforcemcnt of discipline or investigation of the level of intcgrity of the dclinquent etc rnay be final.

¶19Itule 12 extracted above enables the authority to cxaminc as to whether thc crirninal prosecution failed on technical ground. It is also a settled rr-rle of service jurisprudencc that it is open to a disciplinary authority to take a view differert fi'om that taken by the crirninal courl in a crirninal prosecution which position is unassailable.

18.

¶20'l.he contention of thc respondent that the cause of action for IV.P.(C) No.l696/20t t challenging the action of the petitioner arose only upon his acquittal by the court is misconceived. Thc petitioner accepted the resurtption of the disciplinary proceedings, imposition as well as the irnplementation of the punishment. The respondent did not challenge any of the abovc. In the present case a pcriod of ahnost tcn years has elapsed between the completion of ths departrnental action against the respondent. The petitioner's acquitlal was for the reason that the prosecution failed to provc thc chargc bcyond reasonable doubt, whereas thc disciplinary authority proceeded on the evidence and rlaterial placed before hirn.

¶21In the above circumstances, the cause of action for filing the proceedings before the Central Administrative Tribunal arose on 23'd October, 1998 when thc penalty was imposed on the petitioner and then again on 19tl'August, 1999 when his statutory appeal was rcjected. No other statutory remedy was availablc to the petitioner. In this background, if the rcspondent was aggrieved by the action of the petitioner in continuing with the disciplinary proceedings against him despite pendency of the orirninal casc, causc of action on this ground accrued in favour of the respondent on 7'r' July, 1998 when the disciplinary proceedings were continued and the inquiry repoft was furnishcd to hirn.

¶22We find that section 21 of the Administrative 'lribunals Act, 1985, prescribes that a person aggrieved by an order is required to challcnge thc same before the tribunal within onc year from the date of final order has becn made. In the event that a person made an appeal or reprcscntation as detailed in sub-scction 2(b) of Scction 20, then the person aggrievcd is cntitlcd to makc a pctition within a period of six months without final order lt/ tv. P.(C) tio. 1 696/20 I I havilg been made. In the instant case, it is not disputed that the statutory appeal lrled by the petitioner was also rejected as back as on 19tr' August, l9gg. No right to makc any further representation/petition was available unclcr the statute. In this background, the petition filed by thc pctitioner almost a decade thereafter was hopelessly baned by lirnitation.

¶23For these reasons, we are of the view that the judgrncnt dated 25tr' Muy, 2010 is legally unsustainable and is hereby set aside and quashed.

¶24At this stagc, Mr. V.K. Rao, learned senior counsel for the respondent submits that thc name of the petitioner was placed on the doubtful integrity list. 'l'he respondent has howcvcr not informed the petitioner of the reasons or the circumstances in which he was so placed. It is pointed out that the rcspondenl had also made a prayer in this regard before the Ccntral z\drninistrativc Tribunal. It is directed that in case thc namc of the rcspondent is still being maintained on the doubtful integrity list by thc petitioners, the rcspondcnt shall be at tiU"rty to tnake a representation to the petition6r in this regard who shall consider the same and makc appropriatc orders in accordance with law. ln casc, the rcspondcnt is still aggrieved by any order passed by the petitioners, it shall be open to the respondent to assail the same by way of appropriate procecdings. (z DECEMBER kr lr.P.(C) No l69o120l I 07 .2011 ryge 9 o[9