George N.S. vs Comm. Of Police
2011 Latest Caselaw 3935 Del

*              THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(C) No.4941/2000



                                          Reserved on : July 07, 2011
                                     Pronounced on : August 12, 2011

GEORGE N.S.                                           ...... PETITIONER

                          Through:      Mr. B.B. Bhatia with Mr. Rajendra
                                        Sahu, Mr. Navjot Kumar and Mr.
                                        Karan Khanna Advocates

                                 Versus

COMM. OF POLICE                                     ...... RESPONDENT

                          Through:      Mr. V.K. Tandon, Advocate


CORAM :
HON'BLE MR. JUSTICE A.K. SIKRI
HON'BLE MR. JUSTICE M.L. MEHTA

1.     Whether Reporters of local papers may be
       allowed to see the judgment?                 Yes
2.     To be referred to the Reporter or not ?      Yes
3.     Whether the judgment should be reported
       in the Digest ?                              Yes



M.L. MEHTA, J.

1. The petitioner, at the relevant time, was posted as Constable in

Delhi Police. Allegedly he had threatened one Mr. Rajiv Sharma on his

telephone to pay him `50,000/-, otherwise it could be dangerous for his

life. The telephone call was received by Nurse Licy posted in the

hospital of Dr. Rajeev Sharma. The petitioner who threatened on

telephone claimed himself to be a gangster of LTTE. Dr. Rajeev Sharma

directed Nurse Licy to fix an appointment with the person who had

called him to pay the amount in case of receiving telephone call. On

14th December 1991, he allegedly rang up at 10 am and repeated the

same words. On this Nurse Licy fixed a time and venue. On the same

day, near the gate of Vishal Cinema at about 3.45 pm; a young man

whose name was later on disclosed as George N.S. came there and

talked with Nurse Licy and as soon as he accepted the bag of money

which was containing plain papers, Nurse Licy gave signal and the

police personnel who were nearby, apprehended George N.S. who had

been working as Constable with Delhi Police Control room. On this basis,

an FIR bearing number 351 dated 14th December 1991 under Sections

384, 506 IPC Police Station Sultanpuri was registered and the said

Constable was arrested. He was placed under suspension with effect

from 14th December 1991. However, later on he was reinstated vide

order dated 3rd December 1993. The Departmental Enquiry was

entrusted to Insp. Dahia, which was later on transferred to Inspector

Tyagi on 20th November 1992. The enquiry was held in abeyance vide

order dated 30th December, 1992 till the final verdict of the Criminal

Court in case under Section 384, 506 IPC PS Sultanpuri. It was restarted

and entrusted to Inspector Salma Khan and later on was transferred to

Inspector Veer Bala on 23rd October 1998. In the meantime, Constable

George N.S. was acquitted in the criminal case by learned Metropolitan

Magistrate vide his judgment dated 21st September 1998, as before the

Court of learned Metropolitan Magistrate, the prosecution failed to lead

any evidence except Nurse Licy who was examined-in-chief, but did not

appear for cross examination for many years. The case property

comprising of plain paper notes was also not produced at any point of

time. The case being pending for about 7 years, the Court recorded

acquittal of George N.S. on account of lack of evidence against him. The

departmental enquiry was completed by Inspector Veer Bala who

recorded charge against the petitioner as proved beyond reasonable

doubt. In response to show cause notice, the petitioner submitted his

representation, which came to be considered by the Disciplinary

Authority. While maintaining the findings recorded by Enquiry Officer

Inspector Veer Bala, the Disciplinary Authority also recorded that while

in the criminal case, evidence of Nurse Licy could not be taken into

account because her cross examination could not be recorded, in the

Departmental Enquiry, she had deposed in favour of the prosecution

and thus there being much more evidence in favour of prosecution in

the Departmental Enquiry than what was available in the criminal case,

the charge against the petitioner stood logically proved. While recording

these observations, the Disciplinary Authority also noted that although

the service record of the petitioner was clean, but such a serious

criminal act on his part rendered him unfit to remain in the force.

Consequently, a dismissal order was passed against the petitioner

George N.S. with immediate effect. His suspension period from 14 th

December 1991 to 2nd December 1993 was also treated as a period not

spent on duty.

2. A statutory appeal against the order of Disciplinary Authority was

preferred by the petitioner to the Additional Commissioner of Police

under Section 23 of Delhi Police (Punishment and Appeal) Rules, 1980

(for short, he Rules") against the order dated 11th September 1999 as

passed the Disciplinary Authority. The Appellate Authority maintained

the order of Disciplinary Authority, recording that the appellant has

already been held guilty in an enquiry under the Rules and as such

there was no need to examine his case under Rule 12 of the Rules. The

orders of Disciplinary Authority and the Appellate Authority were

challenged before the Central Administrative Tribunal (CAT) which came

to be dismissed vide the impugned order dated 22 nd January 2000.

While summarily rejecting the application of the petitioner, CAT

observed as under:

"We have perused the order passed by the Criminal Court and we find that Ms. Licy who has been examined in the criminal court was not made available for cross examination. This was the substantial ground which has led to the acquittal of the applicant. As far as Ms. Licy is concerned, she was made available in the disciplinary proceedings. She was examined in chief and thereafter cross examined. Since the order of acquittal was passed on the ground that she had not made herself available for cross examination, the acquittal can be said to have been passed on technical grounds. Similarly, her evidence which was not available for cross examination in the criminal court was made available in the disciplinary proceedings. Hence, additional evidence had become available in the disciplinary proceedings. In the circumstances, the case falls under the exception carved out in clauses (a) and (e) of Rule 12 of Delhi Police (Punishment and Appeal) Rules, 1980 which has been relied upon by the applicant in support of his contention. As far as the finding of guilt is concerned, the same is based on evidence which has been led in the disciplinary proceedings. It is impermissible for this Tribunal to re-appreciate evidence and to come to a finding contrary to the one arrived at by the disciplinary authority."

3. The impugned order of CAT is in challenge before us in the

present writ petition.

4. We have heard learned counsel for the petitioner as well as for

the respondent.

5. The interpretation of Rule 12 of Delhi Police (Punishment and

Appeal) Rules, 1980 is in question in this writ petition. Before adverting

to the interpretation of this Rule, it is essentially appropriate to see the

law as to whether the criminal as well as departmental proceedings

could be initiated simultaneously and if so, the circumstances and its

effect.

6. In the case Capt. M. Paul Anthony v Bharat Gold Mines Ltd.

& Anr. AIR 1999SC 1416, the order of dismissal in the departmental

proceedings had already been passed before the criminal case which

ultimately resulted acquittal of the appellant. The question for

consideration before the Apex Court was as to whether the acquittal

coupled with other circumstances, specially ex parte proceedings of the

case, will have the effect of vitiating the departmental proceedings or

the order of dismissal passed against the appellant. While reiterating

that the proceedings in the criminal case and the departmental

proceedings could proceed simultaneously, the Apex Court held thus:

"13. As we shall presently see, there is a consensus of judicial opinion amongst the High Courts whose decisions we do not intend to refer

in this case, and the various pronouncements of this Court, which shall be copiously referred to, on the basic principle that proceedings in a criminal case and the departmental proceedings can proceed simultaneously with a little exception. As we understand, the basis for this proposition is that proceedings in a criminal case and the departmental proceedings operate in distinct and different jurisdictional areas. Whereas in the departmental proceedings, where a charge relating to misconduct is being investigated, the factors operating in the mind of the Disciplinary Authority may be many such as enforcement of discipline or to investigate the level of integrity of the delinquent or the other staff, the standard of proof required in those proceedings is also different than that required in a criminal case. While in the departmental proceedings, the standard of proof is one of preponderance of the probabilities, in a criminal case, the charge has to be proved by the prosecution beyond reasonable doubts. The little exception may be where the departmental proceedings and the criminal case are based on the same set of facts and the evidence in both the proceedings is common without there being a variance."

7. In the case of G.M. Tank v State of Gujarat And Another

[(2006) 5 SCC 446], the appellant was charged for offence of acquisition

of movable and immovable properties disproportionate to his known

sources of income. After holding departmental enquiry, he was

dismissed from service by order dated 21st October, 1982. Against the

said dismissal order, the appellant filed a Writ Petition before the High

Court. The Single Judge concluded that there was sufficient evidence

against the appellant and dismissed the petition. Against the order of

Single Judge, the appellant preferred LPA and raised the relevant

contentions. The Division Bench dismissed the LPA by confirming the

order of the Single Judge and then the matter was taken up to the

Supreme Court. Referring to various judgments on the point that

acquittal of the appellant by the criminal court does not ipso facto

absolve him from the liability of the disciplinary proceedings and that

since the appellant was acquitted by the criminal court, the

departmental order dismissing him from service deserve to be quashed

and set aside and also that each case is required to be considered in

the backdrop of its facts and circumstances, the Apex Court held as

under:

"30. The judgments relied on by the learned counsel appearing for the respondents are distinguishable on facts and on law. In this case, the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in a departmental case against the appellant and the charge before the criminal court are one and the same. It is true that the nature of charge in the departmental proceedings and in the criminal case is grave. The nature of the case launched against the appellant on the basis of evidence and material collected against him during enquiry and investigation and as reflected in the charge- sheet, factors mentioned are one and the same. In other words, charges, evidence, witnesses and circumstances are one and the same. In the present case, criminal and departmental proceedings have already noticed or granted on the same set of facts, namely raid conducted at the appellant's residence, recovery of articles therefrom. The Investigating Officer Mr. V.B. Raval and other departmental witnesses were the only witnesses examined by the enquiry officer who by relying upon their statement came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case and the criminal court on the examination came to the conclusion that the prosecution has not proved the guilt alleged against the appellant beyond any reasonable doubt and acquitted the appellant by its judicial pronouncement with the finding that the charge has not been proved. It is

also to be noticed that the judicial pronouncement was made after a regular trial and on hot contest. Under these circumstances, it would be unjust and unfair and rather oppressive to allow the findings recorded in the departmental proceedings to stand.

31. In our opinion, such facts and evidence in the departmental as well as criminal proceedings were the same without there being any iota of difference, the appellant should succeed. The distinction which is usually proved between the departmental and criminal proceedings on the basis of the approach and burden of proof would not be applicable in the instant case. Though the finding recorded in the domestic enquiry was found to be valid by the courts below, when there was an honourable acquittal of the employee during the pendency of the proceedings challenging the dismissal, the same requires to be taken note of and the decision in Paul Anthony case will apply. We, therefore, hold that the appeal filed by the appellant deserves to be allowed.

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."

9. 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 Clause

(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.

10. 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.

11. Thus, it would be essential to see as to whether the acquittal

recorded by learned MM was on technical ground or not. It may be

reiterated that the petitioner was charge-sheeted vide FIR No.351 in the

year 1991. The prosecution has failed to examine before the criminal

court not only the witnesses Dr. Rajeev Sharma & Ms. Licy, but also the

other witnesses who were police officials. The court repeatedly

adjourned the case for the prosecution evidence, but no efforts were

seen to have been made by the prosecution in leading evidence. Ms.

Licy, whose examination-in-chief was recorded, was never produced for

her cross examination. Even the case property, the plain paper notes,

were also never produced. Left to this situation, the Court had no

option, but to close the evidence and record acquittal stating that the

prosecution has not been able to prove its case beyond reasonable

doubt. The recording of acquittal being clear, it cannot be said to be

based on technical ground.

12. The acquittal on account of prosecution failing to prove its case

beyond reasonable doubt or on account of lack of evidence or no

evidence cannot be termed as acquittal on technical ground. Such

grounds i.e. technical ground, would be, to illustrate a few, limitation

which has now been prescribed by recent amendment in Cr.P.C or trial

without obtaining sanction as required under Section 197 Cr.P.C in

cases where it is required and the trial being held without obtaining

such sanction. If the legislature intended that acquittal on account of

benefit of doubt or prosecution failing to prove a case beyond

reasonable doubt etc. were not to be a bar in the departmental

proceedings, it would have so specifically provided as Exception in Rule

12. The legislature could not be oblivious of the situation as mentioned

above, particularly when we know that most of the acquittals are

based on the failure of the prosecution to prove the case beyond

reasonable doubt or on account of benefit of doubt. The legislative

wisdom only refers to acquittal on technical grounds as one of the

exceptions for holding departmental proceedings. By any means we

cannot hold that failure of the prosecution to lead evidence per se,

would amount to acquittal on technical ground. The acquittal resulting

on account of prosecution not leading evidence or leading insufficient

evidence would definitely stand on different footing than acquittal

resulting on technical ground. In the former case, the acquittal would be

clean acquittal and even the words like "benefit of doubt" or "failing to

prove beyond reasonable doubt" would be superfluous. The petitioner

was acquitted by learned MM because there was no evidence led by the

prosecution for many years and even the case property was also not

produced for any justifiable reason. Such acquittal could not be said to

be on a technical ground since the charges were not proved and the

decision was arrived at on the basis of no evidence on record. A Division

Bench of Punjab and Haryana High Court in Bhag Singh vs. Punjab

and Sind Bank 2006(1) SCT 175 held that where the acquittal is for

want of any evidence to prove the criminal charge, mere mention of

"benefit of doubt" by a criminal court is superfluous and baseless and

such an acquittal is an "honourable acquittal". Another Division Bench

of Punjab and Haryana High Court in Shashikumari vs. Uttari

Haryana Bijli Vitran Nigam 2005 (1) ATJ 154 has taken the same

view. The instant case, however, appears to be on a better footing.

Thus, we have no hesitation in arriving at a conclusion that exception

(a) to the prohibition was not attracted in the present case.

13. With regard to second exception namely availability of additional

evidence before the departmental enquiry also, we are constrained to

record that there was no additional evidence available before the

departmental enquiry. All the witnesses cited before the criminal court

as well as in departmental enquiry proceedings were the same. What

was prohibited under Rule 12 was that, if a police official was acquitted

by a criminal court, he could not been punished departmentally on the

same charge or for different charge, based on the same evidence,

irrespective of the fact whether the evidence was actually led or not. In

the present case, the witnesses cited before the criminal court as also

before the departmental enquiry being the same, the examination of

Ms. Licy in the departmental proceedings cannot be said as an

additional evidence available in the departmental proceedings. She was

the same witness who was examined in chief, but did not appear for her

cross examination and so her evidence could not be read in the criminal

case. Irrespective of the fact that her evidence was not actually led in

the criminal case, the fact remains that she would not be treated as

additional evidence in the departmental proceedings. The additional

evidence would mean the evidence which was not cited in the criminal

case.

14. We have carefully considered the judgment of the criminal court

as also the impugned judgment as well as the orders of the disciplinary

authority and the Appellate Authority. It is surprising to note that Nurse

Licy did not appear before the criminal court for her cross examination,

but she was made available for her statement in the departmental

enquiry within no time of its initiation by Inspector Veer Bala, Nurse Licy

who is none but the wife of Constable Nasiruddin, constable posted at

Police Station Sultanpuri. That being so, it was all the more easier for

the police to produce her for cross examination in the criminal court.

Non-examination of Nurse Licy in the criminal court apparently smells

something fishy and creates doubt in the prosecution case. The plain

paper notes allegedly handed over to the petitioner, were never

produced before the criminal court. Not only that, the complainant Dr.

Rajeev Sharma was not produced, no other witness who were police

officials were produced before the criminal court. The departmental

proceedings were kept in abeyance and it appears that when the court

started expressing its anguish because of non examination of any

witness, that the departmental proceedings were reopened, instead of

prosecution making any effort to examine its witnesses in the criminal

court. Apparently this appeared to be an easy way to record the guilt,

instead of allowing the witnesses to be exposed in the criminal court.

The story as set up by the prosecution that the petitioner demanded

Rs.50,000/- from Dr. Sharma stating himself to be a member of LTTE,

appears to be a concocted one. There is no iota of evidence led in this

regard except bald statement of Nurse Licy who was apparently an

interested person, being the wife of Constable Nasiruddin posted at

Police Station Sultanpuri. It also seems to be not appealing to any

reason that how the petitioner could only choose Dr. Sharma who was

neither reputed nor a rich doctor, but appeared to be a smalltime

Ayurvedic doctor doing practice in a remote village area of the city.

15. The way statements of witnesses were recorded by Inspector

Veer Bala appears to be shocking. Though the same are not to be

analyzed or re-appreciated in the present proceedings, the same seems

to have been recorded in a very cursory manner with the pre-

determined finger of guilt pointing towards the petitioner. The petitioner

had presented his defence of having came to know Nurse Licy while

traveling together in the train and having made telephone calls to her

to the annoyance of her husband Nasiruddin and consequent false

implication. This has not at all been considered by the enquiry officer

and by the Disciplinary Authority as well as the Appellate Authority.

When the petitioner was not provided any departmental representative

to represent him or the legal assistance in the departmental enquiry, it

was desirable on the part of the enquiry officer to have considered the

defence of the petitioner and confronted the same to Nurse Licy. The

petitioner seems to have gone through with the enquiry proceedings as

unrepresented and that has apparently caused serious prejudice to his

defence. The Disciplinary Authority as well as Appellate Authority

without appreciating that the charges leveled against the petitioner

were grave and serious, and were to result into serious consequences,

have blindly proceeded to accept the enquiry report. The charges which

were leveled against the petitioner in the criminal court as well as in the

departmental enquiry being based on the same facts, evidence and the

material, the prosecution ought to have demonstrated more

responsibility and seriousness in prosecuting the case before the

criminal court, instead of allowing the same to die and to have recourse

to easier channel for recording the guilt. The Enquiry Officer noted down

the short statements of witnesses and recorded, one-line conclusion

that "the charge stands proved against the petitioner George N.S.

beyond reasonable doubt". The Disciplinary Authority while noting down

that although the service record of George N.S was clean, proceeded to

record that such a criminal act has resulted him unfit to be retained as

a member of the force and then proceeded to order his dismissal. The

Appellate Authority while believing the findings of Disciplinary Authority

simply recorded that petitioner was already facing departmental

enquiry, there was no need to examine his case under Rule 12 of the

Rules. Both the orders seems to have been passed without application

of mind.

16. Surprisingly, CAT also fell in error while recording that acquittal

by the criminal court was on technical ground and that the evidence of

Nurse Licy made before the Disciplinary Authority was an additional

evidence which was not available before the criminal court. The

Tribunal has also erred in recording that it was impermissible for it to

appreciate the evidence and come to a finding contrary to the one as

arrived at by the Disciplinary Authority. We have not been able to

understand as to how it was impermissible for the Tribunal to re-

appreciate the evidence which was before the Disciplinary Authority.

17. Both on law as well as on facts, we are of the view that there was

no justification in taking departmental action against the petitioner.

Neither the Disciplinary Authority nor the Appellate Authority

considered either the applicability of Rule 12 of the Rules, 1980 or the

manner in which the petitioner came to be acquitted or the defence

stated by him from the very beginning. At one stage we thought of

quashing the impugned order with directions to CAT to examine the

issue afresh, but having seen that the entire departmental proceedings

have been prejudicial, it would be an exercise in futility to remit the

case to CAT for taking decision afresh.

18. In view of the discussion made above, we allow this petition and

set aside the impugned judgment of CAT. We also quash the orders

dated 18.06.1992 and 23.10.1998 of initiation of departmental

proceedings and also set aside the order dated 11.09.1999 of

Disciplinary Authority as well as dated 22.12.1998 of Appellate

Authority. Consequently, the petitioner shall be entitled to all the

consequential reliefs as admissible under the applicable Rules. Keeping

in view the facts of the case, there shall be no orders as to costs.

M.L. MEHTA (JUDGE)

A.K. SIKRI (JUDGE)

August 12, 2011 rd