Sunder Lal vs State Of Nct Of Delhi & Anr.
2016 Latest Caselaw 4947 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                               Date of Decision: 29th July, 2016
+      Crl. MA 6445/2016 & Crl. MA 4521/2016 in W.P.(Crl.)
       No.2414/2014
       SUNDER LAL                                                 ..... Petitioner
                             Through        Mr A.K. Srivastava, Dr. A.K.
                                            Gautam and Mr Suresh Sharma,
                                            Advs. alongwith petitioner in person
                             versus
       STATE OF NCT OF DELHI & ANR.                        ..... Respondent
                             Through        Mr Sanjeev Bhandari, SPP for CBI
                                            Mr Jamal Akhtar, Adv. for Mr Rahul
                                            Mehra, Standing Counsel for State
                                            (Delhi Police)
%
CORAM:
HON'BLE MS. JUSTICE SUNITA GUPTA

                             JUDGMENT

: SUNITA GUPTA, J.

Crl. MA 6445/2016 & Crl. MA 4521/2016

1. Vide Crl. MA 4521/2016 under S. 482 Cr.PC, the applicant / Central Bureau of Investigation (hereinafter referred to as 'CBI') and Department of Personnel & Training (DoPT) seek directions for variation and /or expunging the following observations and /or directions contained in the order dated 24.02.2015 passed in W.P.(Crl.) 2414/2014:

"Keeping in view the fact that the FIR itself has been quashed and respondent no.2 is not interested in proceeding with the departmental inquiry, it is impressed upon the concerned department to close the departmental proceedings initiated against the petitioner on the basis of complaint made by the complainant/respondent no.2."

2. It is alleged that that by virtue of the said writ petition, the petitioner had sought quashing of the FIR No.33/2010 registered under Ss. 354/509 Indian Penal Code, Police Station Lodhi Colony, New Delhi. The CBI was not arrayed as a respondent in the writ petition. The writ petition was disposed of vide order dated 24.02.2015 whereby the writ petition was allowed by quashing the aforesaid FIR on the basis of unconditional apology tendered by the petitioner. On the statement of counsel for the respondent no.2 that the respondent no.2 was not interested in proceeding with the departmental enquiry, the concerned department was impressed upon to close the departmental proceedings initiated against him on the basis of complaint made by complainant/ respondent no.2, It is alleged that a three member committee was constituted to look into the complaint made by the respondent no.2 with regard to sexual harassment at workplace which gave its finding on 18.03.2010. The DoPT initiated departmental proceedings and forwarded the matter to UPSC for its advice. The UPSC recommended for imposition of penalty of reduction to a lower stage in the time scale of pay by two stages for a period of three years with further directions that the CO will not earn increment of pay during the period of such reduction and on expiry of such period, the reduction will not have the effect of postponing his future increment of pay and copy of advice of the UPSC was made available to the petitioner. Vide memo dated 03.02.2015, the petitioner was requested to submit his representation. However, this fact was concealed by the petitioner. In case the order dated 24.02.2015 is not varied or modified, serious prejudice would be caused in case of non-imposition of appropriate penalty against the petitioner who has been found guilty in relation to allegations of sexual harassment at workplace.

3. The application is contested by the petitioner on the ground that there is inordinate and unacceptable delay of more than a year in filing the present applications. Moreover, Mr D.P. Singh, Administrative Officer - CBI has not clarified whether he is competent to swear the affidavit on behalf of DoPT and

whether he has been authorized to file the application. There is no suppression of fact as such the applications are liable to be dismissed.

4. Mr Sanjeev Bhandari, SPP for CBI submitted that the petitioner obtained the impugned order by suppressing the material facts as such a fraud has been played by him which vitiates everything. Reliance has been placed on S.P. Chengal Varaya Naidu (Dead) by LRs.v. Jagannath (Dead) by LRs and others, (1994) 1 SCC 1 and A.V. Papayya Sastry & Ors. V Government of A.P. & Ors., 2007 AIR (SC) 1544. Counsel further submits that so far as quashing of FIR is concerned, the applicant has nothing to say, however, so far as the later portion of the order vide which the concerned department was impressed upon not to proceed further with the departmental enquiry, it is submitted that the said order was passed without impleading the CBI or the DoPT as a party. Moreover, CBI is competent to file the application because the petitioner is working with CBI. The respondent No.2 at the relevant time was also working with CBI and pursuant to the complaint made by her against the petitioner to CBI, a three member committee was constituted which conducted an enquiry and thereafter UPSC has recommended for imposing the major penalty. The allegations against the petitioner are very serious in nature and in case the order is not varied or recalled it would encourage the erring officials who have no respect for women and may affect the dignity at a workplace of the institution.

5. On the other hand, learned counsel for the petitioner submits that the CBI has not placed on record anything to show that it has been authorized to file the present application. Moreover, there was no suppression of facts as it was brought to the notice of the Court that the departmental proceedings were going on. The memo dated 03.02.2015 was received by the petitioner only on 13.02.2015 as such he could file representation within 15 days thereafter. Moreover, till date no proceedings have been initiated against the petitioner. He has not been served with any charge-sheet nor any enquiry has been conducted nor any penalty has been imposed. Furthermore, there is inordinate delay in filing the application. The

petitioner had informed the department on the very next date of passing of the order i.e. on 25.02.2015 despite that the application has been moved after a great lapse. In fact, it tantamount to review of the order which is not permissible under law, as such the application is liable to be dismissed.

6. Pursuant to a complaint made by the respondent no.2, who was working in CBI /ACB/DLI as a Public Prosecutor against the petitioner who was working as DLA in CBI FIR under Ss. 354/509 IPC was registered against him. The petitioner sought quashing of the FIR by filing the writ petition being W.P.(Crl.) No.2414/2014. On 24.02.2015, the petitioner made the following statement:

"I tender my unconditional apology to Mr.P.P.Khurana, Senior Advocate for the complainant/Respondent No.2 who is present in the Court today pertaining to the complaint which culminated in the registration of this FIR. The departmental enquiry on the basis of a complaint dated 23.02.2010 is going on the same may also be closed."

7. On behalf of the respondent no.2, her counsel also made the following statement:

"Under instructions from respondent no.2 I accept the unconditional apology tendered by the petitioner. I have no objection to the quashing of the FIR and the proceedings emanating therefrom. Further, respondent no.2 is not interested in pursuing her complaint dated 23.02.2010 made before the Director of Prosecution, CBI and I have no objection if the departmental proceedings are closed."

8. In view of the unconditional apology tendered by the petitioner, which was accepted by the respondent no.2 through her counsel, no objection was given to the quashing of the FIR and the proceedings emanating therefrom by learned Senior Advocate for respondent No.2-complainant as well as Standing Counsel appearing on behalf of State. Thereupon, while allowing the petition FIR No.33/2010 registered at Police Station Lodhi Colony, under Ss. 354/509 IPC and consequent proceedings emanating therefrom were quashed. In view of the statement made by the petitioner to which no objection was given by counsel for the respondent no.2, the department was impressed upon to close the departmental proceedings. However, at that time, the Court was not apprised of the fact that a

three member committee was constituted to go into the complaint made by a woman with regard to sexual harassment at workplace which gave a finding on 18.03.2010 against the petitioner and further that an advice dated 13.01.2015 was received from UPSC for imposition of major penalty. A memo dated 03.02.2015 was issued to the petitioner, which is in following terms:

No. 221/19/2010-AVD-II.B Government of India Ministry of Personnel, Public Grievance & Pensions Department of Personnel and Training AVD - II. B North Block, New Delhi Dated the 03. Feb, 2015 Memorandum Subject: Disciplinary proceedings for major penalty under Rule 14 of the CCS (CCA) Rules, 1965 against Shri Sunder Lal, DLA, CBI (case of sexual harassment) forwarding of the advice of the Union Public Service Commission.

A copy of advice of the Union Public Service Commission vide F.3/415/2013-S.I dated 13.01.2015 received in disciplinary proceedings for major penalty against Shri Sunder Lal DLA/CBI is enclosed herewith. If Shri Sunder Lal DLA/CBI wishes to make any representation or submission, he may do so in writing to the Disciplinary Authority within 15 days of receipt of this Memorandum to take further action in the matter. If no representation / submission of Shri Sunder Lal, DLA/CBI is received in the stipulated time, it will be presumed that he has nothing to say/nothing to represent in the matter and further action will be taken accordingly.

Sign/-

(Meera Mohanty) Dy. Secretary (V-II) Encl: As above Shri Sunder Lal DLA/CBI Through Dy. Director (Pers.)

CBI, Plot 5-B, 7th Floor, CGO Complex, Lodhi Road, New Delhi.

Copy to:-

The Director, Central Bureau of Investigation (Attention, Ms. Deepika Suri, Dy. Director (Pers.), CGO Complex, Lodhi Road, New Delhi with the request that the acknowledgment (in original from Shri Sunder Lal DLA/CBI may be furnished to this Department for record."

Had all these facts been brought to the notice of the Court by the petitioner, the said order would not have been passed.

9. In S.P. Chengal Varaya Naidu (supra), it has been held as under:

"The principle of "finality of litigation" cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. A person, who's case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation. a judgment or decree obtained by playing fraud on the court is a nullity and non est in the eyes of law. Such a judgment/decree by the first court or by the highest court has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings" .

Similar view was taken in A.V. Papayya Sastry & Ors. (supra)

10. The submission of learned counsel for the petitioner that the CBI has failed to disclose its authority to file the present application seeking modification of the order is without any substance as CBI is not a stranger to the proceedings. It is not in dispute that the petitioner is working as DLA in CBI. The respondent no.2 was also working as Public Prosecutor in CBI at the relevant time when a complaint was made by her not only to police but also to her department. A three member committee for looking into the complaint made by the respondent no.2 was also constituted by CBI. All the correspondences by the Ministry of Personnel, Public Grievance and Pension, Department of Personnel and Training

were routed through CBI. That being so, CBI is competent to move the present application.

11. Mere delay in filing the application does not debar the applicant from seeking relief as prayed by the applicant - CBI because as observed in S.P. Chengal Varaya Naidu (supra), an order obtained by playing fraud on the court is a nullity and non est in the eyes of law. Such an order by the first court or by the highest court has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings. That being so, mere delay in moving an application does not come in the way of the applicant - CBI seeking appropriate relief when the petitioner suppressed the material facts from the Court.

12. The Court is not required to go into the question as to whether any charge- sheet has been filed against the petitioner or any enquiry has been initiated against him while dealing with the present application. It has also come during the course of arguments that a contempt petition was filed by the petitioner against the applicant which was, however, withdrawn by him.

13. In view of the foregoing, the applications filed by the applicant - CBI is allowed. The order dated 24.02.2015 whereby the concerned department was impressed upon to close the departmental proceedings against the petitioner on the basis of a complaint made by the complainant/ respondent no.2 is recalled and the concerned departments are at liberty to proceed in accordance with law.

14. The applications stand disposed of accordingly.

(SUNITA GUPTA) JUDGE JULY 29, 2016/rd