Commissioner Of Police, Delhi vs H.C.Laxmi Chand
2011 Latest Caselaw 4396 Del

*                 IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           W.P.(C) No.22584/2005


%                        Date of Decision: 9.09.2011


Commissioner of Police, Delhi                              .... Petitioner


                      Through Mr.Bhupesh Narula, Advocate


                                 Versus


H.C.Laxmi Chand                                           .... Respondent


                      Through Mr.Anil Singhal, Advocate



CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

1.       Whether reporters of Local papers may            YES
         be allowed to see the judgment?
2.       To be referred to the reporter or not?           YES
3.       Whether the judgment should be                   YES
         reported in the Digest?

ANIL KUMAR, J.

*

1. The petitioner, Commissioner of Police, has challenged the order

dated 25th May, 2005 passed by the Central Administrative Tribunal,

Principal Bench, New Delhi, titled as „H.C. Laxmi Chand v. Government

of NCT of Delhi‟, allowing the original application of the respondent and

setting aside the order of punishment dated 28th July, 2003 passed by

the Disciplinary Authority awarding the forfeiture of 4 years of approved

service permanently and also setting aside the Appellate order dated

11th October, 2004 dismissing the appeal of the respondent.

2. Brief facts to comprehend the controversies are that one Lal

Bahadur S/o Gorakh Bahadur, a domestic servant of Sh.Shanker Lal

Sangwani S/o Sh.Prahlad Rai Sangwani, a resident of Plot No.34,

Kanwar Nagar, Jaipur, Rajasthan had committed theft in the house of

his owner and had left for Delhi along with some jewelry and other

articles.

3. The respondent along with Constable Sheel Bahadur was posted

on Picket Duty at Farash Khan, S.N.Marg, Delhi on 28th May, 1995.

They checked the belongings of Lal Bahadur who was allegedly in

possession of the stolen goods. The allegation was made that the stolen

goods were taken by the respondent and Const. Sheel Bahadur from Lal

Bahadur. A departmental enquiry was ordered against the respondent

and Constable Sheel Bahadur by order dated 21st June, 1995 on the

allegation that the respondent as well as Constable Sheel Bahadur on

finding that Lal Bahadur was in possession of stolen goods, instead of

producing him before the senior officers, had kept all the valuable

articles and cash with themselves and let off Lal Bahadur without

taking any legal action.

4. The alleged act of the respondent and the other Constable came

to light when SI Narain Singh of Police Station Subhash Chowk, Jaipur

(Rajasthan) visited the Police Station Lahori Gate, Delhi and arrested

the respondent on the disclosure statement of and identification by Lal

Bahadur who was the main accused in FIR No.83/1995 under Section

381 and 411 of the Indian Penal Code, P.S.Subhash Chowk, Jaipur.

5. It was alleged that the goods which were stolen by Lal Bahadur

and which were subsequently taken from him by the respondent and

Constable Sheel Bahadur, were allegedly recovered from them as well.

The respondent and Constable Sheel Bahadur were accused of extortion

and criminal misappropriation of stolen property and having committed

a breach of trust and also having tarnished the image of the whole

police department in the eyes of the public by failing to maintain the

integrity and devotion to duty and in acting in a manner very

unbecoming of police officers, which was also in contravention of CCS

(Conduct) Rules, 1964.

6. The respondent was placed under suspension by DCP/North

District by Order No.4008-30/HAP-N dated 9th June, 1995. The

departmental enquiry was directed to be conducted on a day to day

basis. Summary of allegations, list of witnesses and list of documents

were prepared and supplied to the respondent. During the departmental

proceeding, the respondent did not admit the allegations made against

him. During the departmental proceedings on behalf of the department

various witnesses were examined.

7. During the pendency of the departmental proceeding, the

respondent and his co-defaulter filed an original application No.1636 of

1995 before the Tribunal against the departmental enquiry initiated

against them. As per the directions of the Tribunal by order dated 1st

July, 1996 the departmental enquiry was kept in abeyance, till the

decision in the criminal case as on the same charge and evidence the

Criminal case was pending against the respondent.

8. The suspension case of the respondent was reviewed as FR No.53

and he was reinstated and his suspension was revoked vide order

No.1057-76/HAP/North dated 13th February, 2001.

9. The criminal case No.234/1995, titled as „State of Rajasthan v.

Lal Bahadur & Ors.‟ was decided by the Additional Chief Judicial

Magistrate, Jaipur by order dated 22nd January, 2001 and he

exonerated the respondent of charges under Section 414 and 411 of the

Indian Penal Code. Learned Magistrate held that the main issue in the

case was whether stolen goods were recovered from the respondent and

Constable Sheel Bahadur. The main accused Lal Bahadur who had

allegedly stolen the goods from his owner had been declared a

proclaimed offender. The Magistrate perused the testimonies of PW1

Mahesh Kumar, PW2 Smt.Mayawati, PW3 Shankar Lal, PW4 Prema

Ram, PW5 Bhori Lal, PW6 Vijay, PW7 Ramesh Kumar, PW8 Anoop

Singh, PW9 Narain Singh, PW10 Ram Krishan and PW11 Bijender and

held that on the basis of the testimonies on these witnesses nothing

could be proved against the respondent and co-accused Constable

Sheel Bahadur. The statement of PW9 Narain Singh, the witness of the

alleged recovery was disbelieved, as the other witnesses of recovery PW7

Ramesh Kumar and PW8 Anoop Singh had turned hostile and refuted

the allegations of the prosecution that the recovery had been made from

the respondent. It was held that there was no evidence available on the

records which could corroborate the statement of PW9 Narain Singh

and consequently, it was held that the prosecution had failed to prove

the charges against the respondent and therefore the co-accused

Constable Sheel Bahadur as well as the respondent were acquitted.

10. After acquitting of the respondent, the petitioner reopened the

disciplinary proceedings which were in abeyance under the provisions

of Rule 12 of the Delhi Police (Punishment & Appeal) Rules, 1980. The

Rule 12 of Delhi Police (Punishment & Appeal) Rules, 1980 is 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 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

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

The said rule does not permit departmental proceedings in a case

where an employee is acquitted in criminal case after his trial on the

same evidence. However, the said rule carves out five exceptions to this

general principle.

11. By order dated 17th May, 2001 passed by the Deputy

Commissioner of Police, North District, Delhi, Rule 12 was invoked to

conclude the departmental proceedings against the respondent. While

invoking Rule 12, it was held that during trial two witnesses had turned

hostile as they were won over by the respondent and hence the acquittal

was on technical grounds. Consequently, it was ordered that the

departmental enquiry in respect of the respondent be reopened. In the

enquiry proceedings three witnesses namely, Constable Ram Krishan,

HC Prema Ram and SI Narain Singh were not examined. According to

the allegations of the petitioner, despite sincere efforts made by the

enquiry officer, these three witnesses could not be examined as they

were not found residing at the addresses given by them. The petitioner

further asserted that on the basis of the testimonies of the PWs, the

enquiry officer concluded that the charges framed against the

respondent stood proved and submitted its findings to the Disciplinary

Authority. Thereafter the Disciplinary Authority served copies of the

same on the respondent and Constable Sheel Bahadur by order dated

6th February, 2002 with a direction to produce their defense witnesses

as well as defense statement. Three defense witnesses were examined

on behalf of the respondent. On the basis of the testimonies recorded

before the Inquiry Officer, and the defense representations it was held

by the Disciplinary Authority that the charges against the respondent

and his co-defaulter were proved. The Disciplinary Authority also held

that in the criminal case the respondent was acquitted only on account

of certain witnesses turning hostile.

12. A copy of the enquiry report was provided to the respondent and

after considering the representation made by the respondent against

the enquiry report, the Disciplinary Authority imposed the punishment

of forfeiture of 4 years of approved service permanently by order dated

28th July, 2003. The Disciplinary Authority referred to the testimonies

and observed that the seizure memo was prepared in the barrack of

Police Station Lahori Gate, Delhi, which was signed by IO Ramesh,

Anoop Singh, the respondent, Constable Sheel Bahadur and Constable

Prema Ram. It was held that though Ramesh and Anoop Singh had

appeared during the criminal trial, they had turned hostile and they

could not be traced in the departmental proceedings, however

Constable Prema Ram had admitted and upheld the signatures and

contents of the seizure memo.

13. Aggrieved by the punishment awarded by the Disciplinary

Authority, the respondent preferred an appeal to the Appellate

Authority, Joint Commissioner of Police/Northern Range. The appeal

was dismissed by order dated 12th July, 2002 by the Appellate

Authority. Against the order of the punishment and the dismissal of

appeal by order dated 12th July, 2002, the petitioner filed an Original

Application being O.A. No.2634 of 2002, titled as „HC Laxmi Chand v.

Joint Commissioner, Delhi Police & Ors.‟. The Administrative Tribunal

vide judgment dated 26th May, 2003 quashed the order of the

punishment, as well as, the order of the Appellate Authority dated 12th

July, 2002 and remitted the matter back to the Disciplinary Authority

for reconsidering the matter from the stage the penalty order was

passed.

14. Pursuant to remitting the matter back to the Disciplinary

Authority and on considering the PHQ‟s circular dated 16th April, 2002

relating to the clarification of Rule 8 (d)(ii) of the Delhi Police

(Punishment & Appeal) Rules, 1980, the matter was reconsidered and

by order dated 28th July, 2003 the punishment of forfeiture of 4 years of

approved service permanently was awarded to the petitioner resulting in

the reduction of his pay from Rs.4050/- per month to Rs.3710/- per

month in the time scale of Rs.3200-85-4900/- and his suspension

period from 6th June, 1995 to 12th February, 2001 was also ordered to

be treated as period not spent on duty for all intents and purposes.

15. Against the order dated 28th July, 2003, the petitioner filed an

appeal which was dismissed by the Appellate Authority by order dated

11th October, 2004.

16. Aggrieved by the order dated 28th July, 2003 passed by the

Disciplinary Authority and order dated 11th October, 2004 passed by

the Appellate Authority dismissing the appeal, the respondent filed an

Original Application being O.A. No. 2664/2004 under Section 19 of the

Administrative Tribunal Act, 1956 contending inter-alia, that the

respondent was acquitted by the criminal court on merits and not on

any technical ground. It was also asserted that the criminal court did

not give any finding that the witnesses were won over by the respondent

and they had turned hostile on account of respondent winning them.

The respondent contended before the Tribunal that merely because the

witnesses had turned hostile, it would not lead to a conclusive inference

that the witnesses had been won over by the respondent. Consequently,

the order dated 17th May, 2001 of reopening the enquiry under Rule 12

of Delhi Police (Punishment & Appeal) Rules, 1980 was not in

consonance with the said provision, as neither was it a criminal case

against the respondent dismissed on technical grounds, nor was there

any basis for the Deputy Commissioner to infer that the prosecution

witnesses had been won over by the respondent. The order dated 17th

May, 2001 passed by the Deputy Commissioner of Police, North District

reopening the enquiry under Rule 12 of Delhi Police (Punishment &

Appeal) Rules, 1980 is as under:-

"A joint departmental enquiry against HC Laxmi Chand No.77/N and Const. Sheel Bahadur No.736/N ordered vide this office order No.4213-50/HAP/North dated 21.06.95 was held in abeyance vide this office order No.7719- 22/HAP/North dated 01.07.96 till the finalization of case FIR No.83/95 u/s 381/411 IPC PS Subhash Chowk, Jaipur, Rajasthan, registered against them. The case has been finalized by the court of Sh. Brijesh Purohit, RJS, Jaipur, Rajasthan. During trial two witnesses turned hostile as they were won over by the defaulters. The acquittal is based on technical grounds. The DE against HC Lalxmi Chand No.77/N is hereby re-opened in terms of Rule 12 (A) of Delhi Police (Punishment & Appeal) Rules, 1980 and entrusted to Inspr. Ganga Singh, DIU/North who will submit his findings to the under signed expeditiously. Const. Sheel Bahadur No.736/N, the co-defaulter has already been dismissed from service in another DE vide this office order No.10975/HAP/North dated 8-12-98. The DE in respect of Const. Sheel Bahadur No.736/N, will be re-

                opened in case he comes in             service   on    some
               appeal/revision/tribunal orders etc.
                                                   (SANDEEP GOEL)
                                   DEPUTY COMMISSIONER OF POLICE,
                                            NORTH DISTRICT, DELHI"

17. The respondent contended that since he was acquitted of the

charges on merit, it was against the principle of natural justice to

punish the respondent on the same allegations and charges based on

the same evidence from which he had been exonerated by a competent

Court of law. The respondent also challenged the punishment imposed

upon him by order dated 28th July, 2003 on the ground that the

material witnesses, namely Ramesh Kumar, Anoop Singh and accused

Lal Bahadur on whose alleged disclosure statements the respondent

was arrested, were not examined. The respondent contended that

though these witnesses were available, they were deliberately not

examined as the department knew that they would not support the false

allegations levelled against the respondent.

18. The Original Application filed by the respondent before the

Central Administrative Tribunal, Principal Bench was contested by the

petitioner contending inter-alia that after reopening the disciplinary

proceedings against the respondent under Rule 12 of the Delhi Police

(Punishment & Appeal) Rules, 1980, the enquiry was entrusted to

Inspector Ganga Singh who had examined two witnesses on behalf of

the department and the opportunity to cross-examine the said

witnesses was given to the respondent and Constable Sheel Bahadur. It

was asserted on behalf of the petitioner that 7 PWs were to be examined

but three witnesses of the department did not join the enquiry despite

efforts made by the Enquiry Officer, since they were not found residing

at the address given by them. It was contended that on the basis of the

evidence on record, the charges were framed and the respondent had

submitted the list of his witnesses as well as the defense statement. The

statement of the three defense witnesses were recorded and on the

basis of the evidence on record and on perusing the judgment of the

criminal court in the case of FIR 83/95, under Sections 381/411 of the

Indian Penal Code, PS Subhash Chowk, Jaipur (Rajasthan), the

Enquiry Officer held that the charge against the respondent was proved.

The Disciplinary Authority too agreed with the findings of the enquiry

officer and awarded the forfeiture of 4 years of approved service

permanently and appeal filed against the order of punishment was also

dismissed.

19. The petitioner contended that the acquittal of the applicant in the

criminal case was not on merit. Regarding the allegation that the

witnesses had been won over, nothing was alleged in the reply filed

before the Tribunal nor any explanation and the reasons to come to

such a conclusion, except pleading in para 5.3 that there was nothing

amounting to violation of Rule 12 of Delhi Police (Punishment & Appeal)

Rules, 1980 in initiating and finalizing the departmental proceeding

against the respondent. The Tribunal after considering the pleas and

contentions of the parties, by order dated 25th May, 2005 allowed the

original application of the respondent holding that Rule 12 of the Delhi

Police (Punishment & Appeal) Rules, 1980 does not permit the opening

of the departmental proceedings where an employee has been acquitted

by a criminal court, unless the exceptions carved out in the said rule

are made out in the facts and circumstances of the case. The Tribunal

also relied on the case of Vijender Singh v. Commissioner of Police,

Original Application No.2640 of 2002 decided on 24th July, 2003

holding that if the decision is arrived at on the basis of the evidence on

record in such a case if the charge is not substantiated or the evidence

is insufficient, it will not be acquittal on technical grounds. It was held

that once the evidence had been allowed to be produced and is not

forthcoming, it would be an acquittal rather than an acquittal on

technical grounds. As to what acquittal on technical ground means the

Tribunal held that failure on technical grounds would be if an

unauthorized person files a complaint or if there is no proper sanction

or if the report has not been lodged by a competent authority or on

account of any procedural flaw which may prompt the court to put an

end to prosecution case, then only it will be an acquittal on the

technical grounds. It was further held that in such cases prosecution or

the State may still be in a position to come to the court after removing

the said technicalities. However, where the evidence is allowed and for

some reasons it does not prove the charge framed or the testimonies of

the witnesses who turned hostile for some reasons is not reliable, the

prosecution and the State cannot come and file another case on the

same charge. If the criminal court takes note of the evidence on record

and for want of evidence holds that the charge is not proved it will not

be an acquittal on technical ground and the exception carved out under

Rule 12 (a) of the Delhi Police (Punishment & Appeal) Rules, 1980

cannot be invoked. On perusing the order of the criminal court, the

Tribunal had held that the order dated 22nd January, 2001 was on

perusal of the evidence and the acquittal pursuant to the perusal of the

evidence by the criminal Court could not be construed as an acquittal

on technical grounds. The Tribunal had further held that if the

statement of Narain Singh PW9 could not be relied on without any

corroboration, it will not be construed as a dismissal of the criminal

case on technical grounds. In para 10 of the judgment impugned by the

petitioner, the Tribunal had held as under:-

"10. Identical would be the position herein. We have already given the brief resume pertaining to the acquittal of the appellant at Jaipur. Perusal of the order passed by the Learned Court clearly reveals that the acquittal was on appreciation of evidence. The Learned Court did not deem it appropriate to convict the applicant on the statement of Narain Singh, PW-9 because there was no corroboration forthcoming to the said statement. Therefore, it cannot be taken that the criminal case failed because of any technical ground to which we have referred to above already but it failed because the Learned Court appreciated the evidence of the witnesses and held that the charge stood not proved.

Resultantly, the contention of the respondents cannot be accepted."

The Tribunal, in the circumstances, had set aside the order of the

Disciplinary Authority dated 28th July, 2003 and the Appellate

Authority order dated 11th October, 2004 on the ground that the

disciplinary proceedings could not be reopened under Rule 12 of Delhi

Police (Punishment & Appeal) Rules, 1980.

20. The petitioner has challenged the order of the Tribunal dated 25th

May, 2005 in the present writ petition inter-alia on the grounds that the

charges leveled against the respondent and Constable Sheel Bahadur

amounted to gross misconduct, dishonesty and dereliction in

performance of duty by the respondent in contravention of the CCS

Conduct Rules, 1964 which were not looked into or probed by the

ACJM, Jaipur and therefore, the acquittal of the respondent was on

different charges and hence it would not debar the petitioner from

holding the departmental enquiry. It was further contended that the

standard of proof required in disciplinary proceedings is different from

the standard of proof required in criminal cases. Relying on Rule 12 of

the Delhi Police (Punishment & Appeal) Rules, 1980, it was contended

that the said rule could be invoked and departmental proceeding could

be reopened if in the opinion of the Deputy Commissioner of Police the

prosecution witnesses have been won over. It was contended that the

prosecution witnesses Sh.Anoop Singh and Sh.Ramesh Chand had

turned hostile as they had been won over by the respondent and

therefore, under Rule 12 of the Delhi Police (Punishment & Appeal)

Rules, 1980 the departmental proceeding could be reopened. Relying

on the statement of PW9 Narain Singh, it was contended that his

testimony unambiguously disclosed the facts which justified the

departmental proceeding on the different charges of breach of trust,

dishonesty, dereliction of duty and loss of confidence etc. It was also

contended that the additional evidence during the departmental enquiry

was sufficient to prove the charges levelled against the respondent.

Refuting the inferences drawn by the Tribunal that the statement of

PW9 Narain Singh was not corroborated by PW7 Ramesh Chand and

PW8 Anoop Singh, resulting in acquittal of the respondent, it is

contended that it could only be inferred as an acquittal on technical

grounds as corroboration was not required in respect of the statement

of PW9 Narain Singh in peculiar circumstances. The petitioner also

contended that the failure of the criminal charges on technical ground

has not been defined and in such eventuality, acquittal on technical

grounds depends on the facts and circumstances of each individual

case. The counsel for the petitioner has relied on Harbans Lal Nihal

Chand v. Superintendent of Police, Karnal & Ors., AIR 1969 Punjab &

Haryana 131; Gurdev Singh v. State of Punjab & Anr, (1975) 77 PLR

112; Inspector General of Police v. Amrik Singh, AIR 1973 Punjab &

Haryana 314; Sh. Daya Nand & Anr v. Commissioner of Police & Ors,

93(2001) DLT 563; Govt. of NCT of Delhi & Ors v. Rajpal Singh, 100

(2002) DLT 385; Secretary, Ministry of Home Affairs & Anr v. Tahir Ali

Khan Tyagi, MANU/SC/0540/2002; Ex Constable Vinod Kumar v.

Union of India through the Secretary, Ministry of Home Affairs & Anr.,

MANU/DE/1117/2002; Noida Entrepreneurs Assn. v. Noida & Ors, AIR

2007 SC 1161; V.Jayapalan v. Commissioner of Police & Ors, 149(2008)

DLT 674; Dilwar Singh v. Commissioner of Police & Anr,

MANU/DE/3203/2009; Harvir Singh v. Union of India & Anr.,

166(2010) DLT 474; ASI Ravinder Kumar and Ors v. Union of India &

Ors, MANU/DE/0174/2010 and Joginder Singh v. Government of NCT

of Delhi & Ors., MANU/DE/1823/2010.

21. The respondent contested the petition on the same grounds

which were raised before the Tribunal and relied on the pleas and

contentions raised in the original application before the Tribunal. The

counsel for the respondent has relied on Government of NCT of Delhi &

Ors v. Satyadev Singh, W.P(C) No.4431-33/2005 decided on 21st April,

2005; G.M.Tank v. State of Gujarat & Anr, 2006(3) SCT 252;

Commissioner of Police & Ors v. SI Karuna Sagar,

MANU/DE/2253/2009; Khurshid Ahmad v. State of Haryana & Ors,

W.P(C) No.1689/2009 decided by Punjab & Haryana High Court on 16th

July, 2009; Govt. of NCT of Delhi v. ASI Karan Singh,

MANU/DE/2455/2009 and Govt. of NCT of Delhi & Ors. v. Jag Saran,

W.P(C) No.623/2009 decided on 25th May, 2010.

22. This Court has heard the learned counsel for the parties in detail,

as well as, perused the record which was before the Tribunal and also

directed the petitioner to produce the copies of the testimonies of PW7

and PW8, namely Ramesh Chand and Anoop Singh, witnesses of the

recovery who had turned hostile in the criminal case. The precedents

relied on by the counsel for the petitioners are distinguishable. None of

the precedents have laid down that if the acquittal of an accused is on

account of insufficiency of evidence because of witnesses turning

hostile, then it has to be construed as technical acquittal.

23. In Harbans Lal Nihal Chand (Supra) the employee was not

punished departmentally on the same charges and so the Court had not

gone into the question of whether the different charges upon which he

was punished was based "upon the evidence sought in the criminal

case" or not. It was held that the case fell within the category of cases

excluded by clauses (a), (b) and (c) from the purview of sub rule 1 of the

Rule 16.3 as the criminal charges had failed because the investigating

officer did not prove the handwriting of the defaulter by an expert

evidence and so it was agreed that this was an omission of a technical

nature during the investigation and thus it was held that the employee

had escaped conviction in the criminal proceedings merely because of a

technical flaw in the investigation of the case. In Gurdev Singh (Supra)

the question involved was whether the acquittal of the employee under

Section 247 of the Code of Criminal Procedure, barred the institution of

the departmental proceeding against him. It was admitted in that case

that the charges and the evidence in support of the prosecution and in

the departmental enquiry were the same, as in the criminal complaint.

The Criminal complaint was however dismissed in default and it

consequently led to the acquittal of the delinquent employee. In the

criminal case the complainant had not appeared on the date of hearing,

as a result of the absence of the complainant, the order of the acquittal

had to be passed under Section 247 of the Code of Criminal Procedure.

Thus it was held that it was a case where the criminal charge fell on

technical ground as the charge had fallen on account of the absence of

complainant on the date of hearing and not because the charge had

been enquired into, but had not been substantiated. It was also held

that another trial could be held in the criminal Court against the

employee on the same charge, as the acquittal under Section 247 of the

Code of Criminal Procedure would not bar the departmental

proceedings being taken against him in respect of the same charge and

on the same evidence. In Inspector General of Police v. Amrik Singh

(Supra) the criminal charge against the employee had failed on a

technical ground because the Magistrate had refused to record the

evidence of the two prosecution witnesses who were available and

without recording their evidence he had expressed the opinion, that he

would not convict the respondent on their testimony. As a result of

which the employee was acquitted since the available prosecution

evidence was shut out by the Magistrate and it was not because no

evidence had been led against him as the Magistrate refused to record

any evidence in the case. In the circumstances, it was held that the

acquittal of the employee by the Magistrate was not only contrary to the

procedure prescribed in the Code of Criminal Procedure but was also

without jurisdiction. In the circumstances, it was held that the criminal

charge against the employee fell on a technical ground and the

disciplinary action could be taken against the delinquent under clause

(a) of Rule 16.3 (1) of the Punjab Police Rules, 1934.

24. In Daya Nand and Anr (Supra) decided by a Division Bench of

this Court it was held that the order of discharge in a criminal case

does not amount to an order of acquittal. The distinction was culled

from Section 227 and 232 of the Criminal Procedure Code itself. In the

circumstances it was held that Rule 12 of the Delhi Police (P&A) Rules,

1980 could be invoked for initiating departmental proceedings against

the delinquent employee. In Government of NCT of Delhi & Ors v. Rajpal

Singh (Supra) a Division Bench of this Court had held that only in the

event that the departmental proceedings had not been initiated and/or

the same had not culminated in the imposition of punishment, could

Rule 12 of Delhi Police (P&A) Rules, 1980 be attracted. It was further

held that only because an appeal was pending against the order passed

in the departmental proceedings it could not mean that the order of

punishment passed by the Disciplinary Authority remained under

animated suspension and that for all intent and purport the same

would remain operative. It was held that the principle that an appeal is

a continuation of a proceeding has nothing to do with the interpretation

of Rule 12 as the same has to be interpreted literally.

25. In Secretary, Ministry of Home Affairs and Anr v. Tahir Ali Khan

Tyagi (Supra) the Supreme Court had held that departmental inquiry

and criminal proceeding can run simultaneously and departmental

proceeding can also be initiated even after acquittal in a criminal

proceeding, particularly when the standard of proof in a criminal

proceeding is completely different from the standard of proof that is

required to prove the delinquency of a Government servant in a

departmental proceeding. It was further held that under Rule 12 of

Delhi Police (Punishment and Appeal) Rules, 1980 departmental

proceeding could also be initiated, if in the opinion of the Court the

prosecution witnesses are found to be won over. In Ex Constable Vinod

Kumar (Supra) the employee was acquitted not on the ground that there

was no evidence against him but on the basis of a compromise affected

between the complainant and the employee. On account of the

compromise the criminal Court compounded the offence. In the appeal

the Appellate Court considered the factum of acquittal, however

declined to set aside the punishment as the employee was acquitted

only on the basis of the compromise. In the circumstances it was held

that departmental action could be taken against the employee and

therefore, the punishment of dismissal from the service for his corrupt

activities was upheld. It was held in the circumstances that Rule 12 of

Delhi Police (P&A) Rules, 1980 was not applicable as the rule applies to

a case where a police officer has been tried and acquitted by a criminal

Court and is subsequently punished departmentally on the same

charge or a different charge on the same evidence cited in the criminal

case whether actually led or not. In the said case the police officer was

proceeded against departmentally and his services were terminated by

way of punishment, before he was acquitted by the criminal Court not

on merits but on the basis of a compromise and compounding of the

offence.

26. In Noida Entrepreneurs Assn. (Supra) dropping of enquiry on the

ground that enquiry was not required after consideration of CBI enquiry

report was held to be illegal and the order dropping the enquiry was

quashed. It was held that there would be no bar to proceed

simultaneously with the 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. In V.Jayapalan (Supra) the police

official was acquitted in the criminal case based on technical grounds

due to non compliance with Sections 42 and 50 of NDPS Act. In these

circumstances it was held that the disciplinary proceedings could be

initiated under Rule 12 of the Delhi Police (P&A) Rules, 1980 and that

the departmental proceeding was not without jurisdiction. In Dilwar

Singh (Supra) a Division Bench of this Court had held that

departmental proceedings and proceedings in a criminal case can

proceed simultaneously, as there is no bar in their being conducted

simultaneously, though separately. However, if departmental

proceedings and criminal cases are based on identical and similar set of

facts and involve a complicated question of law and fact, then it would

be desirable to stay the departmental proceeding till the conclusion of

the criminal case. In this case the police official was dealt with

departmentally and dismissed from service, however, in the criminal

case he was acquitted subsequently in appeal on account of delay in

registration of FIR. In the circumstances it was held that the acquittal

on account of delay in registration of FIR would not be a valid ground to

absolve the police official of the consequences of the disciplinary

proceedings.

27. In Harvir Singh (Supra) an order was passed under Article 311(2)

of the Constitution of India dispensing with the departmental enquiry

on the ground that it was not reasonably practicable to hold such an

enquiry. The delinquent in this case was working as a constable and he

was involved in the theft of several cars. The criminal case filed against

the delinquent official, however, resulted into either his discharge or

acquittal and based on the discharge/acquittal the police official sought

setting aside of his order of dismissal and his reinstatement in service.

The application of the police official was rejected and aggrieved by this

an original application was filed, which was allowed by the Tribunal and

the Tribunal had ordered the reinstatement of petitioner in the service.

However no orders were passed with regard to consequential benefits.

Before the High Court the grievance of the petitioner was limited to the

grant of consequential benefits. On considering the matter, the High

Court was of the view that the order of reinstatement passed by the

Tribunal though was erroneous, however, did not perceive it to be

prudent to interfere with the order of the Tribunal since the police

official had already been reinstated pursuant to the order of the

Tribunal and had been working for 15 years and there was nothing

against him during his working for 15 years. In these circumstances,

the order of the Tribunal setting aside the order of dismissal passed

under Article 311(2) (b) was not interfered with.

28. In ASI Ravinder Kumar (Supra) it was held that there were no

grounds to stay the departmental proceedings against the delinquent

police official against whom the criminal proceedings were also pending.

Considering the facts and circumstances of the case, it was held that as

the purpose of departmental enquiry and of criminal prosecution is

different and on distinct aspects, they can be allowed to continue

simultaneously, except where complicated questions of law are involved

in the criminal trial and in the departmental proceedings. In Joginder

Singh (Supra) it was noticed that the acquittal of the police official was

not a case of clean acquittal as the observations made while acquitting

reflected that there was manipulation in the certificate which was

produced by the police official for availing the employment with Delhi

Police. In the circumstances, it was held that the police official was not

entitled for the benefit of Rule 12 of Delhi Police (P&A) Rules, 1980.

Consequently the pleas and contentions raised on behalf of the

petitioners are not supported by any of the precedents relied by them.

29. Per contra in Satyadev Singh (Supra), relied on by the counsel for

the respondent, a Division Bench of this Court had held that the

charged officer was acquitted on appreciation of evidence by the Session

Judge who had held that the evidence was insufficient to convict the

charged officer and had acquitted him by giving him the benefit of

doubt. Considering the acquittal of the charged officer on giving him the

benefit of doubt, it was held that none of the exceptions as provided in

Rule 12 of the Delhi Police (P&A) Rules, 1980 were attracted. In the said

case clause (b) of Rule 12 was specifically and solely relied on, however

it was held that the said exception was not attracted, on the ground

that though the witness had turned hostile in his examination,

however, he had supported the prosecution case during the cross

examination. Therefore, it could not be alleged that the said witness

was won over by the charged officer. In G.M.Tank (Supra) a public

servant had been charged criminally and departmentally for possessing

assets disproportionate to his known source of income. In the

departmental enquiry he was found guilty and the order of dismissal

was passed, however, he was acquitted in the corruption case.

Witnesses in the departmental enquiry and in the criminal case were

the same and in the circumstances order of dismissal from service was

set aside without back wages as the charged officer had already retired.

The Supreme Court had held that normally where the accused is

acquitted honorably and completely exonerated of the charges it would

not be expedient to continue the departmental enquiry on the very same

charges on the same set of facts and evidence. In the said case the

order of dismissal was passed on 21st October, 1982 whereas the

Criminal Court had acquitted him on 30th January, 2002. The Supreme

Court had held that though the findings recorded in the domestic

enquiry was found to be valid by the Courts below, when there is an

honorable acquittal of the employee during the pendency of proceeding

challenging the dismissal, the same requires to be taken note of.

30. In SI Karuna Sagar (Supra) a Division Bench had held that after

the criminal Court examined all the witnesses and thereafter closed the

evidence, since no material had come out from the witnesses who had

already been examined and, therefore, even the statement of formal

witnesses and the statement of accused was not recorded under Section

313 of Criminal Procedure Code and after going through the statements

under Section 161 of Criminal Procedure Code and the statements

recorded before the trial Court and after declaring the witnesses hostile

and considering cross examination of hostile witnesses by public

prosecutor, if nothing had come out from the proceedings before the

trial Court, then there could be no rationale to conduct departmental

enquiry as nothing adverse would come out against the charged officer

from the same set of witnesses. The Court had noticed that it was not

the case of the department that they have some additional documents

in possession which they would rely upon in the departmental enquiry

and in the circumstances no further departmental action could be

taken against the charged officer and thus the writ petition filed by the

department against the order of the Tribunal setting aside the decision

of the department to proceed against the charged officer under Section

12 of the Delhi Police (P&A) Rules, 1980 was dismissed.

31. In Khurshid Ahmad (Supra) on perusal of the copy of the

judgment of acquittal by the criminal Court, it had transpired that even

the prosecutrix had turned hostile and refused to identify the charged

officer and the other persons, who had allegedly sexually assaulted her.

The prosecutrix who had turned hostile was cross examined by public

prosecutor and even the father of the prosecutrix had not stated much

against the charged officer. The Court had held that normally, the

witnesses which are won over are given up by the prosecution and not

produced in the Court, and a witness who is produced in the Court but

does not support the case of the prosecution, is termed as a „hostile

witness‟. The law permits such witness to be asked questions by the

party producing him which are generally put by the opposing party. The

evidence of a witness who has turned hostile cannot be discarded in its

entirety merely on the ground that the witness turned hostile. The

evidence of a hostile witness can still be relied upon, if otherwise found

trustworthy. Therefore, it was held that it would be difficult to brand a

witness who turns hostile, to be a witness who has been won over. It

was further held that such a witness is a witness who suppresses the

truth and to elicit the truth, an opportunity is given to the opposing

party to address questions in the nature of cross examination. It was

therefore, held that merely because a witness has turned hostile it

does not lead to an inference that he had been won over by the

opposing party unless there is finding to that effect by the

competent Court or some other material to establish that fact. In

the said case it was held that since the evidence in the criminal trial

and the version in the departmental proceedings were the same,

therefore, there being no difference, the delinquent officer could not be

made to suffer a different finding which is not even supported by the

evidence led in the departmental proceedings. Similarly in ASI Karan

Singh (Supra) a Division Bench of this Court had held that while

acquitting the delinquent officer the Sessions Judge did not record any

finding that the witnesses were won over and, therefore, findings

recorded by the disciplinary authority that the prosecutrix and her

family members were won over was without any basis. It was further

held that if the guilty police officer is tried and acquitted by the criminal

Court, he cannot be punished departmentally on the same charge or for

a different charge based on the same evidence which is cited in the

criminal case unless acquittal has resulted on the grounds as

mentioned in Clauses (a) to (e) of Rule 12 of Delhi Police (P&A) Rules,

1980. In Jag Saran (Supra) since the allegations in the FIR against the

delinquent officer were the same as the charges made against him, the

disciplinary inquiry was kept in abeyance till the finalization of the

criminal proceedings. Rather the charged officer was acquitted by the

criminal Court also on account of some of the prosecution witnesses

turning hostile. This Court had held that the department had not been

able to substantiate that the prosecution witnesses who had turned

hostile, had been won over by the charged officer and, therefore, the

department could not initiate the departmental proceedings under Rule

12(b) of the said Rules.

32. The respondent had been charged in the departmental proceeding

for the same allegation for which he was charged in the criminal trial.

The witnesses who were examined in the criminal case, some of them

were also examined in the departmental proceedings, after acquittal of

the respondent in the criminal case. The witnesses who had turned

hostile in the criminal case were not examined on account of the fact

that they could not be allegedly traced by the petitioners despite alleged

efforts made by them. The departmental proceedings which were

initiated against the respondent were directed to be kept in abeyance as

the criminal case against the respondent was based on identical and

similar set of facts and the charges in the departmental proceedings

and before the criminal court against the respondent were almost

identical.

33. The criminal Court acquitted the respondent holding that the

main accused Lal Bahadur is absconding and there was no evidence

against the respondent from the statement of PW1 Mahesh Kumar, PW2

Smt.Mayawati, PW3 Shankar Lal, PW4 Prema Ram, PW5 Bhori Lal,

PW6 Vijay, PW10 Ram Krishan & PW11 Bijender on the basis of which

anything could be proved against the respondent and establishing his

culpability. The statement of PW9 Narain Singh, alleged to be a witness

of recovery was not relied on since the other important witnesses of

recovery, namely, PW7 Ramesh and PW8 Anoop Singh had turned

hostile and had not supported the story of the prosecution regarding

recovery of stolen articles from the respondent. In the circumstances, it

was held that there was no evidence available on the record which could

corroborate the statement of PW9 Narain Singh, and thus, the

prosecution failed to prove the charge against the respondent and

consequently, acquitted the respondent from the charges under Section

414 and 411 of the Indian Penal Code. The petitioners even after the

acquittal of the respondent by the criminal court, revived the

departmental proceedings by invoking the exceptions carved out under

Section 12 of the Delhi Police (P&A) Rules, 1980 contending that the

criminal charge had failed on technical ground and that the prosecution

witnesses had been won over by the respondent.

34. In the order dated 17th May, 2001 except stating that the

acquittal is based on technical grounds, no reason had been given as to

why the acquittal is allegedly based on the technical ground. The

tribunal while setting aside the order passed by the petitioner reopening

the disciplinary proceedings relying on the exception in Rule 12 had

referred to a decision of another Coordinate Bench in OA

No.2640/2002, titled as „Vijender Singh v. Commissioner of Police‟

decided on 24th July, 2003 where it was held that once evidence had

been allowed to be produced and the evidence adduced is not sufficient,

then in such circumstances, the acquittal of the accused would be an

acquittal and not an acquittal on technical ground. Citing some of the

instances of technical acquittal it was held that it would be acquittal on

technical grounds, if an unauthorized person files a complaint or the

petition fails before a court or it fails on technical aspect e.g. there is no

proper sanction, or the report has not been lodged by the competent

authority, or there is such other procedural flaw which may prompt the

criminal Court to put an end to the prosecution case. Then in such

circumstances acquittal will be a technical acquittal. However, in such

cases of technical acquittal the prosecution may still be in a position to

come back to the court after rectifying the technical flaw. But if the

acquittal is after appreciation of evidence adduced against the accused,

the prosecution or State cannot go back and initiate another criminal

case against the accused or bring more evidence on the same charges.

The learned counsel for the petitioner has not been able to demonstrate

in the facts and circumstances that the acquittal of the respondent is

on technical grounds, even though the criminal court had perused the

evidence of all the witnesses and did not find sufficient evidence to

conclude on the guilt of the respondent. The Court did not think it

appropriate to rely on the testimony of the PW9 Narain Singh, one of the

witnesses of the alleged recovery, in view of the other witnesses of

recovery becoming hostile and not supporting the prosecution version.

The prosecution did not even challenge the order of the acquittal of the

respondent in appeal. No precedent has also been cited on behalf of the

petitioner to establish that in such circumstances as in the case of the

respondent, acquittal can be construed as a technical acquittal.

35. Consequently, the inferences on behalf of the petitioner in its

order dated 17th May, 2001 invoking sub section (a) of Rule 12 of the

Delhi Police (Punishment & Appeal) Rules, 1980 cannot be sustained

and it cannot be held that the acquittal of the respondent was on

technical grounds so as to give jurisdiction to the petitioner to re-open

the departmental proceedings which were kept in abeyance on account

of the pendency of the criminal case against the respondent on the

same charges.

36. The next plea raised on behalf of the petitioner for reopening the

departmental proceedings against the respondent was on the ground

that the two witnesses who had turned hostile were won over by the

respondent. There is no presumption in law that if a witness has turned

hostile, he/she has been won over by the accused. In W.P.C.623/2009,

titled as „Govt. of NCT of Delhi and Others v. Jag Saran‟ decided on 25th

May, 2005, it was held that the accused cannot be saddled with the

liability of the prosecution witness turning hostile, nor it can be

assumed that the accused won over the said witness unless there are

cogent facts and circumstances on the basis of which such inferences

can be drawn. In Manu/DE/2455/2009, Govt. of NCT of Delhi v. ASI

Karan Singh, the accused was acquitted on account of lack of evidence

in support of charges of rape against him as all the witnesses including

the prosecutrix had not supported the prosecution case. The

Disciplinary Authority, however, invoking the Rule 12 (b) of the Delhi

Police (P&A) Rules, 1980 initiated the departmental proceeding on the

premise that the witnesses had been won over by the accused. The High

Court had held that there was no finding recorded by the criminal

Court that the witnesses who had turned hostile had been won over by

the accused nor was there any material before the Disciplinary

Authority to come to the conclusion that the witnesses had been won

over by the accused so as to invoke Rule 12 (b) of the Delhi Police (P&A)

Rules, 1980 and in the circumstances, the disciplinary proceedings

against the accused were quashed. In Khurshid Ahmad (Supra) the

prosecutrix had turned hostile and refused to identify the charged

officer and the other persons, who had allegedly sexually assaulted her.

The prosecutrix who had turned hostile was cross examined by public

prosecutor. The Court had held that normally the witnesses which are

won over are given up by the prosecution and not produced in the

Court; and a witness who is produced in the Court but does not

support the case of the prosecution, is termed as a „hostile witness‟.

The law permits such witness to be asked questions by the party

producing him which are generally put by the opposing party. The

evidence of a witness who has turned hostile cannot be discarded in its

entirety merely on the ground that the witness turned hostile. The

evidence of a hostile witness can still be relied upon, if otherwise found

trustworthy. Therefore, a witness who turns hostile cannot be termed as

a witness who has been won over. It was further held that such a

witness is a witness who suppresses the truth and to elicit the truth, an

opportunity is given to the opposing party to address questions in the

nature of cross examination. Therefore, merely because a witness has

turned hostile it does not lead to an inference that he had been won

over by the opposing party unless there is finding to that effect by the

competent Court or some other material to establish that fact. The order

of the petitioners in the circumstances that the witnesses who had

turned hostile had been won over cannot be sustained.

37. Considering the entirety of the facts and circumstances, this

Court does not find any illegality, irregularity or un-sustainability in the

order of the Tribunal dated 25.5.2005 setting aside the order dated 17th

May, 2001 of the petitioners so as to interfere with the same 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. All the

pending applications are also disposed of. The parties are, however, left

to bear their own costs.

ANIL KUMAR, J.

SUDERSHAN KUMAR MISRA, J.

September 9, 2011 vk