Delhi High Court
Prakash Singh vs Commissioner Of Police & Ors on 15 July, 2016
$~29.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 5969/2016
% Judgment dated 15.07.2016
PRAKASH SINGH ..... Petitioner
Through : Mr.Anuj Sharma, Adv.
versus
COMMISSIONER OF POLICE & ORS ..... Respondents
Through : Mr.Devesh Singh, Advs. for the
respondents.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MR. JUSTICE I.S. MEHTA
G.S.SISTANI, J (ORAL)
CM APPL. 24588/2016
1. Exemption allowed subject to all just exceptions.
2. Application stands disposed of.
W.P.(C) 5969/2016
3. Challenge in this writ petition is to the order dated 11.3.2016 passed by
Central Administrative Tribunal (in short „the Tribunal‟) in
O.A.No.1825/2015, by which the OA filed by the petitioner herein was
dismissed.
4. The necessary facts to be noticed for disposal of the present writ petition
are that the petitioner initially joined as a Constable in the Delhi Police
and thereafter he joined the Excise Department on deputation.
5. It is alleged that on 6.11.2006, an FIR was registered against the petitioner
on a false and concocted charge of outraging the modesty of a woman
under the influence of liquor, pursuant to which he was arrested. On
26.5.2010, disciplinary proceedings were initiated against the petitioner.
W.P.(C).5969/2016 Page 1 of 9
In the meanwhile, the petitioner requested the Inquiry Officer to keep the
departmental proceedings in abeyance till the conclusion of the criminal
trial, however, this request of the petitioner was not acceded to. The
Inquiry Officer submitted his report on 31.3.2011 concluding that only the
charge of „consumption of liquor‟ stands proved against the petitioner.
6. As per the petitioner, the Inquiry Officer has reached to a wrongful
conclusion as no charge of consumption of liquor was framed.
7. On 2.5.2011, the Disciplinary Authority while affirming the view taken
by the Inquiry Officer imposed a major punishment of withholding of
next increment temporarily for a period of one year. Meanwhile, the
learned Metropolitan Magistrate, Mahila Courts, acquitted the petitioner
of all the criminal charges vide order dated 26.11.2012. The petitioner
thereafter preferred an appeal against the order of the Disciplinary
Authority thereby imposing major punishment, however, the said appeal
was dismissed by the Appellate Authority on 2.1.2014. Since the
petitioner was denied promotion on 16.9.2014 in a DPC List-C-2014 on
the ground of his being „Unfit‟, he approached the Tribunal by filing
O.A., which stands dismissed.
8. Learned counsel for the petitioner submits that the Tribunal has failed to
take into account that the petitioner has been acquitted both, by the
Inquiry Officer and by the Criminal Court, of the substantive charge, i.e.
outraging the modesty of a woman, which was framed against him.
Counsel further submits that in the absence of a specific charge having
been framed against the petitioner, the Inquiry Officer, the Disciplinary
Authority and the Tribunal have erred in holding him guilty and awarding
him punishment of withholding of next increment for a period of one
year.
9. Secondly, learned counsel for the petitioner submits that the respondents
W.P.(C).5969/2016 Page 2 of 9
and the Tribunal have failed to take into account Rule 12 of the Delhi
Police (Punishment and Appeal) Rules, 1980. It is contended that once
the petitioner was acquitted by the criminal court of all the charges, he
could not have been punished on the same charge or on a different charge
by the Department. Counsel further submits that the Tribunal has failed
to take into account that the petitioner did not consume liquor during his
duty hours and he was found to be under the influence of liquor at the
time of his arrest by which time he was not on duty.
10. Learned counsel for the petitioner has relied upon a decision rendered by
the Supreme Court of India in the case of M.V. Bijlani v. Union of India
And Others, reported at (2006) 5 SCC 88, more particularly paras 14 and
23, in support of his contention that a definite charge would have been
framed against the petitioner herein. Paras 14 and 23 read as under:
"14. From a perusal of the Enquiry Report, it appears to us that
the disciplinary authorities proceeded on a wrong premise. The
Appellant was principally charged for non-maintenance of ACE-8
Register. He was not charged for theft or misappropriation of 4000
kgs. of telegraph copper wire or misutilization thereof. If he was to
be proceeded against for misutilisation or misappropriation of the
said amount of copper wire, it was necessary for the disciplinary
authority to frame appropriate charges in that behalf. Charges
were said to have been framed after receipt of a report from CBI
(Anti Corruption Bureau). It was, therefore, expected that definite
charges of misutilization/misappropriation of copper wire by the
Appellant would have been framed. The Appellant, therefore,
should have been charged for defalcation or misutilisation of the
stores he had handled if he was to be departmentally proceeded
against on that basis. The second charge shows that he had merely
failed to supervise the working of the line. There was no charge
that he failed to account for the copper wire over which he had
physical control.
W.P.(C).5969/2016 Page 3 of 9
.............
23. Evidently, the evidences recorded by the Enquiry Officer and
inferences drawn by him were not commensurate with the charges.
If it was a case of misutilisation or misappropriation, the Appellant
should have been told thereabout specifically. Such a serious
charge could not have been enquired without framing appropriate
charges. The charges are otherwise vague. We have noticed
hereinbefore that the High Court also proceeded on the basis that
the non-maintenance of diary amounted to misutilisation of copper
wire."
11. We have heard learned counsel for the petitioner and counsel for the
respondents, who enters appearance on an advance copy. The following
charge was framed against the petitioner:
" CHARGE
I, Insp. R.S. Malik No.DI-31 charge you Ct.Parkash No.454/RTB
now 5454/Dap that while posted in Excise Department, on
deputation from Delhi Police you went to the house of one
Smt.Darksha Parveen W/o Anwar Ahmad R/o G-9/69, Ratiya Marg,
Sangam Vihar, New Delhi 0n 5-11-06 at 10:00 PM. You caught
hold Darksha Parveen from back side and under the influence of
liquor tried to molest her. Thus you outraged modesty of
Smt.Darkash Parveen. On the statement of Smt.Darksha Parvene
case F.I.R. No.1052/06 u/s 354 IPC was registered on 6.11.06 at
Police Station Sangam Vihar in this regard and you were arrested
on 6.11.06 in the case and charge sheet was filed against you on
25.5.2007 in the court.
The above act on your part amounts to gross misconduct,
negligence and dereliction in discharge of your official duties and
unbecoming of a police officer which renders you liable to be
punished under the provision of Delhi Police (Punishment and
Appeal) Rules 1980.
19/1/11
Inspr.R.S. Malik
E.O.
th
7 BN. DAP"
(Underline added)
12. A reading of the aforestated charge would leave no room for doubt that
the charge was framed on the ground the petitioner had caught hold of
Mrs.Darksha Parveen from backside under the influence of liquor and
tried to molest her and his act amounted to gross misconduct, negligence
and dereliction in discharge of official duties and unbecoming of a police
officer.
13. It may be noticed that the learned trial court while passing the impugned
judgment has observed that it is evident from the record that the petitioner
was only charged sheeted by the Trial Magistrate for outraging the
modesty of Mrs.Darksha Parveen under Section 354 IPC and for
trespassing her house under Section 451 IPC vide Order dated 23.7.2009,
but he was not charge sheeted or tried for an offence of
consumption/influence of liquor for which the Inquiry Officer has held
him guilty in the departmental proceedings, which means that allegation
of under the influence of liquor in the Departmental Enquiry was entirely
a different charge, which was never the subject matter in the criminal case
for which the petitioner was punished on the basis of report of the Inquiry
Officer by the Competent Authority vide order dated 2.5.2011.
14. It would also be worthwhile to mention that in the order dated 2.5.2011,
the Disciplinary Authority had made an observation that the petitioner
was heard in OR on 20.4.2011 and he admitted that he had consumed
alcohol on that day but he was not on duty. Relevant portion of the order
dated 2.5.2011 passed by Disciplinary Authority reads as under:
"Agreeing with the findings of the Enquiry Officer, a copy of the
same was delivered to him on 02.04.2011 with the direction to
submit his representation, if any, within 15 days vide this office UO
No.2455/HAP-7th Bn.DAP, dated 31.03.2011. He submitted his
representation on 13.04.2011 stating that ne never claimed to be a
teetotaler and mere smell of alcohol in breath does not constitute a
misconduct. This plea is not admitted MLC No.158201/06 (Ex.PW-
4) conducted at AIIMS is very clear, according to which he
consumed alcohol on that day. However, in the interest of equity,
fair play and justice, he was heard on OR on 20.04.2011 where he
admitted that he had consumed alcohol on that day but was not on
duty. This plea is not admitted. In case he was not duty then why he
visited the residence of Smt. Darkasha Parveen on that day at late
hours in drunken state."
15. Thus, the learned Tribunal was of the view that it was clearly mentioned
in the charge sheet that the petitioner was under the influence of liquor at
the relevant time. The petitioner was very well aware of this allegation of
„under the influence of liquor‟ from the very beginning during the course
of enquiry. The Tribunal has also held that this fact was duly proved from
the medical report. The Tribunal has also observed that the Inquiry
Officer examined and relied upon relevant evidence including medical
report and recorded the statement of the petitioner. Concurring with the
findings of the Inquiry Officer, the competent authority has passed the
impugned order of punishment. Additionally, no prejudice is shown to
have been caused to the applicant in this connection. We find no reason
to disagree with the observations and findings of the learned Tribunal.
16. Thus, the first submission of learned counsel for the petitioner that the
Inquiry Officer erroneously held the petitioner guilty of the charge of
„consumption of liquor on duty‟ cannot be accepted.
17. As far as the second submission of counsel for the petitioner that
departmental proceedings are vitiated in view of Rule 12 of Delhi Police
(Punishment And Appeal) Rules, 1980, is concerned, the same has very
aptly been dealt with by the learned Tribunal. It would be useful to
reproduce Rule 12 of Delhi Police (Punishment And Appeal) Rules, 1980,
which 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 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."
18. A perusal of Rule 12 suggests that a Police Officer cannot be
departmentally punished on the same charge or on a different charge upon
the evidence cited in the criminal case where the criminal charge has
failed on technical grounds or in the opinion of the court or on the Deputy
Commissioner of Police that the prosecution witnesses have been won
over and the evidence cited in the criminal case discloses facts
unconnected with the charge before the court which justify departmental
proceedings, is available.
19. A bare perusal of the judgment dated 26.11.2012 rendered by the criminal
court would reveal that the petitioner was not honourably acquitted but he
was acquitted on the ground that the version of prosecution has not been
able to stand scrutiny. The provisions contained in Rule 12 of relevant
Rules cannot be applied in the present case as the charge under Sections
354 and 451 before the criminal court were entirely different than the
allegation of under the influence of liquor for which the petitioner was
punished. In other words, the charges before the criminal court were
entirely different than the allegation in the departmental inquiry.
20. At this stage, it would be useful to reproduce the observations made by
the learned Tribunal in paras 18 and 19 of the impugned judgment:
"18. Now, adverting to the next submission of learned counsel
that since the applicant consumed the liquor while he was not on
duty, so he cannot be held guilty for dereliction of duty under the
influence of liquor. In this regard, it may be added here that even
before the inquiry officer the applicant has admitted in so many
words that he was on surveillance duty in the area where the house
of Darkasha Parveen, wife of Anwar Ahmed existed and he took
him to his house. Not only that, even in the main OA it has been
specifically pleaded that he was present in the house of Darkasha
Parveen, wife of Anwar Ahmed, to collect information, to keep
surveillance in performance of his official duty. On the other hand,
there is positive evidence on record that he has consumed liquor in
the house of complainant while on duty. Even the time, date and
place of occurrence has been admitted by the applicant. Therefore,
this argument appears to be an afterthought, and cannot be
accepted.
19. Sequally, the next argument of learned counsel that there
was no evidence on record to prove the charge that the applicant
was under the influence of liquor again cannot be accepted. As
indicated hereinabove, the EO recorded the findings of facts based
on the evidence including medical evidence that the applicant was
under the influence of liquor at the relevant time, date and place in
the house of Darkasha Parveen wife of Anwar Ahmed which was
rightly accepted by the competent authority, while passing
punishment order."
21. As far as the judgment relied upon in the case of M.V. Bijlani (supra) is
concerned, in our view, the same is not applicable to the facts of the
present case as reading of the Charge would show that the Charge with
regard to consuming liquor was also framed in the composite charge and
also in this case it cannot be said that the evidence recorded by the Inquiry
Officer was not commensurate with the charges.
22. The impugned judgment rendered by the learned Tribunal is a well-
reasoned judgment. The Tribunal has taken into consideration and dealt
with all the grounds, which have been urged. Resultantly, we find no
ground to entertain the present writ petition. Thus, there is no infirmity in
the impugned judgment, which would require interference by this Court in
proceedings under Article 226 of the Constitution of India. Accordingly,
writ petition stands dismissed.
G.S.SISTANI, J
I.S. MEHTA, J
JULY 15, 2016
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