ADDL.COMMISSIONER OF POLICE SECURITY Vs. DINESH KUMAR

JUDGEMENT

(1.) Petitioner {Additional Commissioner of Police (Security)} by way of present writ petition, challenges order dated March 13, 2003 passed by the Central Administrative Tribunal (hereinafter referred to as the Tribunal) in O.A. No.2909/2002 whereby the Tribunal held that the acquittal of the respondent No.1 in Case No.82/1997 (relating to FIR No.718/1997, under Ss. 20/29 NDPS Act) vide judgment dated February 15, 2002 cannot be held to be on 'technical grounds' but is substantially on merits of the case and in the circumstances it would not be proper for the Disciplinary Authority to proceed on identical facts and on the same charge so as to come to a different finding in the departmental proceedings. The OA was accordingly allowed quashing the order dated October 11, 2002 passed by Additional Deputy Commissioner of Police (Security) directing the conduct of DE proceedings under Rule 16 of Delhi Police (Punishment and Appeal) Rules, 1980.

(2.) In brief, respondent No.1 (Constable Dinesh Kumar) along with Sanjay Giri was apprehended on July 01, 1997 about 5:40 pm by SI Ramesh Kumar and Head Constable Mahender Singh, on the basis of secret information during checking of vehicles at lower Subhash Marg, Red Fort, Delhi. The scooter was being driven by respondent No.1 Dinesh Kumar, who tried to accelerate the speed of the scooter but Head Constable Mahender Singh managed to hold the stepney of the scooter. After completing requisite formalities under NDPS Act, recovery of one Kg. of Charas was effected from the possession of Sanjay Giri, who was sitting on the pillion seat behind respondent No.1. An FIR No. 718/1997, under Ss. 20/29/61/85 NDPS Act dated July 01, 1997, PS: Kotwali, North District, Delhi was accordingly registered and both the accused were formally arrested. The scooter involved in transportation was also seized and found to be stolen.

(3.) Respondent No.1 was dismissed from service invoking Article 311(2)(b) of the Constitution of India for the aforesaid misconduct vide order dated July 07, 1997. However, since respondent No.1 was acquitted vide judgment dated February 15, 2002 by Shri V. P. Vaish, the then ASJ, Delhi, in criminal proceedings extending the benefit of doubt, an appeal was preferred by him before Addl. C.P./Security, New Delhi. Accepting the appeal preferred by respondent No.1, the Appellate Authority vide order dated August 12, 2002 held that provision under Article 311(2)(b) of the Constitution of India was not attracted in the case, as there is no proof of any complaint etc. to show that prosecution witnesses were threatened by respondent No.1 and thus the shortcut method applied by the Disciplinary Authority was not justified. In view of the judgment of acquittal passed by learned ASJ, the order of dismissal of respondent No.1 passed by the competent authority was set aside by the Appellate Authority vide aforesaid order dated August 12, 2002. The Appellate Authority also held that in the facts and circumstances of the case, it would be open to the Disciplinary Authority to proceed in the matter under Rule 12 of Delhi Police (Punishment and Appeal) Rules, 1980, if attracted in this case. Also, the period from the 'date of dismissal order' till passing of the order by the appellate authority was directed to be treated as 'period not spent on duty' but may be counted towards the qualifying service. Further, the period from the date of issue of the order to the date of joining of duty may be treated as leave of the kind due.