Asi Ravinder Kumar & Others vs Union Of India & Others
2010 Latest Caselaw 366 Del

*                   IN THE HIGH COURT OF DELHI AT NEW DELHI

+                              W.P. (C.) No.452/2010

%                          Date of Decision: 22.01.2010

ASI Ravinder Kumar & Others                                      .... Petitioners
                    Through Mr.Siddharth Luthra                 and Mr.Rajat
                            Katyal, Advocates.

                                      Versus

Union of India & Others                             .... Respondents
                     Through Mr.Anuj Aggarwal, Advocate for the
                             respondent No.1/UOI.
                             Mr.Mirza Aslam Beg, Advocate for the
                             respondent Nos.2 to 4.
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE MOOL CHAND GARG

1.        Whether reporters of Local papers may be                  YES
          allowed to see the judgment?
2.        To be referred to the reporter or not?                    NO
3.        Whether the judgment should be reported in                NO
          the Digest?


ANIL KUMAR, J.

*

The petitioners, officials of Delhi Police, challenge order dated 10th

December, 2009 passed in original application No.3519 of 2009 titled

Inspector Rameshwar Khatri and others v. Government of NCTD and

others declining their plea to stay the departmental proceedings against

them during the pendency of criminal proceedings pending against

them under Prevention of Corruption Act and to set aside the orders

passed in departmental proceedings.

The petitioners are facing trial in FIR No.33 of 2008 dated 14th

February, 2008 under Section 384/385/389/342/120B of Indian Penal

Code, Police Station - Economic Offences Wing. Against the petitioners

departmental proceedings have also been initiated on 17th August,

2009.

The allegations against the petitioners are that while posted in

special staff cell, Central District, on receiving the information through

Constable Naresh regarding illegal kidney transplant scam by Dr. Amit

and Dr. Upender at Gurgaon, Haryana, they apprehended a resident of

Meerut, Mr.Shahid, who led to them to apprehend Kamaljeet Singh and

Hem Ram from Gurudwara near All India Institute of Medical Sciences

who led the police party to the residence of Dr.Amit at Gurgaon from

where Dr.Upender was apprehended. The petitioners on 7th January,

2008 had proceeded without lodging their departure in daily diary.

After apprehending the Doctors, the petitioners struck a deal with

Doctors to secure their release and extorted an amount of Rs.19.85

lakhs and let them off without taking any action and distributed the

extorted money. In the circumstances, it has been alleged against them

that their illegal act had prevent unearthing of illegal kidney transplant

scam and has also defamed the image of the Delhi Police in the eyes of

general public which amounts to gross misconduct and negligence and

dereliction in discharge of their official duties and therefore the

departmental proceedings under the provisions of Delhi Police

(Punishment and Appeal) Rules, 1980 has been initiated against them.

The petitioners made representations in the departmental

proceedings to keep the disciplinary proceedings in abeyance on the

ground that the departmental inquiry would involve complicated

questions of law and fact which would emerge as the criminal trial will

proceed against them and therefore departmental proceedings should

be stayed. For stay of departmental proceedings, it was also asserted

that Mr.Shahid residence of Meerut is a witness in departmental

proceedings who is also facing criminal trial and in one of the cases he

has been convicted. Consequently, it is contended that it will not be

appropriate to place reliance on the testimony of such a witness in the

departmental proceedings. In not citing the Doctors as witness before

the departmental proceedings it is also agitated as a ground to stay the

proceedings, as according to petitioners in the absence of their

testimony the respondents would not be able to prove their case against

petitioners.

Stay of departmental proceedings has also claimed on the ground

that presence of the petitioners in different areas can be established by

the witnesses of the telecom companies who will establish the signals

from the mobile numbers of the petitioners received by the towers

situated in the relevant areas and interpretation of such testimonies

would involve complicated questions of law and fact.

The Tribunal after hearing the parties and relying on Capt. M.

Paul Anthony v. Bharat Gold Mines Ltd., AIR 1999 SC 1416; Delhi

Cloth and General Mills Ltd. V. Kushal Bhan, (1960) 3 SCR 227 and

Depot Manager, Andhra Pradesh State Road Transport Corporation v.

Mohd. Yusuf Miyan, (1997) 2 SCC 699 and the principle culled

therefrom held that advisability, desirability or propriety of staying the

departmental inquiry has to be determined in each case taking into

consider all the facts and circumstances and disciplinary proceedings

should not be stayed as a matter of course. The reliance was placed by

the Tribunal on the standing order (S.O.) on 2008 which appeared to

have been issued on the basis of law laid down by the Apex court in

Capt. M. Paul Anthoney (supra) and Kendriya Vidyalaya Sangathan v. T.

Srinivas, AIR 2004 SC 4127.

The Tribunal has held that assumption by the petitioners that the

department may not be able to prove charges against them on the basis

of the witnesses and documents cited by them will not be a complicated

question of fact and law. Learned counsel for the petitioners has raised

similar propositions before us. What witnesses are to be examined and

what documents are to be proved to bring the charges against the

petitioners is to be decided by the respondents. On the basis of the

assumptions of the petitioners that from the witnesses cited and

documents produced, the department may not be able to establish the

charges will not lead to complicated questions of fact and law. In any

case, whether the testimonies of the witnesses which will be examined

in the departmental proceedings have to be relied on or not and to what

extent they are to be relied on can be considered only after the

testimonies shall be led in the departmental proceedings. On the basis

of the allegations, neither the testimonies of any witnesses can be

rejected even before they are recorded nor it can be held that

testimonies of any such witness shall be inconsequential as has been

alleged by the petitioners.

Learned counsel for the petitioners has admitted that even the

charges have not been framed against the petitioners in the criminal

trial pending against them. In the circumstances, the observation of

the Central Administrative Tribunal, Principal Bench, that the Criminal

trial is likely to take long time for variety of reasons cannot be faulted.

The Tribunal has declined to stay the departmental proceedings also on

the ground that since the criminal trial is likely to take considerable

time, therefore, the charges of extortion of money or taking bribe by the

public officers, Police personnel to the conclusive end as early as

possible, as an early departmental proceeding will be beneficial for the

police force as well as for the public.

After hearing the learned counsel for the petitioner, we are also

inclined to agree with the reason of the Tribunal that since the criminal

proceedings are likely to take considerable time, the charges against the

police officials of extortion of money in order to prevent unearthing of

the kidney scam, should be adjudicated as early as possible during the

departmental proceedings so that the guilt or innocence of the

petitioner may be established at the earliest and should not be delayed

on account of pendency of the criminal proceedings even if the

substantial evidence in both cases, departmental and criminal

proceedings, may be the same.

The question as to whether departmental proceedings and the

criminal case proceedings based on similar set of facts should be

allowed to continue simultaneously, is no longer res integra. The

standard of proof required in departmental proceedings is not the same

as required to prove a criminal charge. One of the test is whether

departmental enquiry would seriously prejudice the delinquent in his

defense in criminal trial. However, where there is a delay in disposal of

the criminal case, departmental proceedings ought to continue to

facilitate early conclusion of the proceedings.

In the case of Noida Entrepreneur Association v. Noida and Ors.

JT 2007 (2) SC 620, the clinching observations made by the Apex Court

on the issues in hand are as under:

"The purpose of departmental enquiry and of prosecution is two different and distinct aspects. The 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 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 a 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 of 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.

In the light of the aforesaid, there can be no straight jacket

formula as to in which case the departmental proceedings are to be

stayed. The departmental proceedings need not be stayed during the

pendency of the criminal case, save and except for cogent reasons. To

our mind, no complicated question of law would be involved in the

criminal trial or in the departmental proceedings. Even the learned

counsel for the petitioners has not propounded complicated questions

of law except the nature of evidence and the assumption that the

evidence which is proposed to be led in departmental enquiry may not

be sufficient to bring home the charges against the petitioners. In the

case of "NOIDA Entrepreneurs Association" (Supra), Apex Court had

held that the standard of proof required in departmental proceedings is

not the same, as required to prove a criminal charge and even if there is

an acquittal in the criminal case in the criminal proceedings, the same

does not bar departmental proceedings. In this case, the Apex Court

had directed the State - Government to continue with the departmental

proceedings

The standing order issued by the respondents in 2000 also does

not contemplate or mandate staying of departmental proceedings in the

present facts and circumstances. Nothing contrary has also been

pointed out by the learned counsel for the petitioners. If the

departmental proceedings in the facts and circumstances are not liable

to be stayed, a fortiori, the orders already passed in the departmental

proceedings are not liable to be set aside.

Considering the totality of the facts and circumstances, in our

opinion, there are no grounds to stay the departmental proceedings

against the petitioners. The order of the Tribunal dated 10th December,

2009 also does not suffer from any such illegality or irregularity which

would require any interference by this court in exercise of its

jurisdiction under Article 226 of the Constitution of India.

The writ petition is, therefore, without any merit and it is

dismissed.

ANIL KUMAR, J.

January 22, 2010                               MOOL CHAND GARG, J.
'Dev'