TaxTMI 
TaxTMI 
2023 (1) TMI 1534
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.... order dated 03.03.2020 whereby the Ld. Additional Sessions Judge in Sessions Case No. 406/2017, summoned the Petitioners in criminal proceedings. The Petitioners in CRL. M.C. 934/2021 and CRL. M.C. 935/2021 were working as Assistant Engineer and Executive Engineer, respectively, with the Delhi Jal Board. 2. Shorn of details, the facts leading to instant petitions are that on 06.08.2017, four labourers were deputed by one Dinesh, a contractor employed with a private cleaning agency, for the task of cleaning 25 manhole covers of the Delhi Jal Board sewer line located opposite Sant Kanwar Mandir, Jal Vihar Road. It is stated that three out of four labourers died of asphyxiation due to inhaling poisonous gases inside one of the manhole covers. The surviving labourer, one Rakesh, stated that the contractor, Dinesh Kumar, had deputed four labourers for cleaning 25 sewer covers from Jal Sadan up to Ring Road but had refused to provide protective equipment such as masks to the labourers, despite multiple requests for the same. He stated that on the day of the incident, at around 12 PM, the complainant had gone to fetch a hammer and was not present at the place of the incident. He state....
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....iew of the above mentioned facts, terms & conditions between M/s Kleenwell Enviro Engineering Services & Delhi Jal Board, statements of witnesses (filed with previous charge sheets) and report/opinion furnished by the hand writing expert, it is apparent that the log book was to be got printed by M/s Kleenwell Enviro Engineering Services and thereafter required to be kept in the custody/possession of the officials of said M/s Kleenwell Enviro Engineering Services Company (i.e. driver of jetting machine or the supervisor of the Company etc.) and was to be submitted in DJB office by 7th of next month. Moreover, the front page of the log book contained a certificate wherein vehicle thereafter the same was to be signed by JE AE and EE. The certificate on the front page of the log book for the month of August 2017 of jetting cum suction machine/vehicle No. DL1GC5533, which was produced by JE S.K. Srivastava on 08.08.2017 contained the signatures of JE, AE and EE despite the fact that the log book was only upto 06.08.2017 and as such how could in contain/bear signatures of the AE and EE before completion of work for the month of August 2017and without mentioning of closing KM reading for ....
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....ct Magistrate, East District, L.M. Bundh, Shashtri Nagar, Delhi vide letter No. TEHSILDAR /MVNERIFICATION /2018-19/473 DATED12.03.2019 confirmed that Certificate No. 90510000316866 in the name of Sonu (brother of deceased Annu) s/o Rajveer Chauhan r/o 89, Durga Park, Dallupura Village, Delhi was issued from their office. As per this Caste Certificate he belongs to Balmiki Caste of Delhi State, which is recognized as a Scheduled Caste. As such deceased Annu was also of the same caste (Balmiki Caste of Delhi State, which is recognized as a Scheduled Caste) being brother of Sonu. Further the Deputy director (PG) office of the Department for the welfare of SC/ST/OB, GNCT of Delhi, B-Block, 2nd Floor, VikasBhawan, I.P. Estate, New Delhi vide letter No. F. 21 (April June)/2019/DSCST/GRIV/PG/8910-25 dated 12.07.2019 had intimated the decision of Permanent Standing Committee constituted under the Chairmanship of Principal Secretary (DSCST) to decide the compensation under the SC/ST (PoA) Act, 1989, that it came to notice of the Committee that in the cases related to Sewer Death of Sewerworkers belonging to SC/ST Category, Delhi Police registered FIRs under section 304 of IPC, Sect....
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....secuted for contravention of Sections 304/1771196/197/218/ 467/468/4711120-BIPC R/W Sections 7/9 of the Prohibition of the employment as ManualScavengers & Their Rehabilitation Act, 2013 R/W 3(1)J & 3(2)(V) of SC/ST Act and accused persons Sh. Shiv Hari (the then AE of DJB) and Sh. Priti Pant (the then EE of DJB) may be tried and prosecuted for contravention of Sections 177/196/197/218/467/468/471/120-B IPC. It is prayed that this Hon'ble Court may kindly accept the present supplementary charge sheet u/s 173 (8) Cr PC. The supplementary charge-sheet along with documents, exhibits and opinion attached herewith may please be placed on judicial record and the same may be clubbed with the main charge sheet filed earlier & made a part of the trial as a piece of evidence." 5. The first supplementary chargesheet states that Satender Kumar Srivastava, JE of DJB, under whose Division the Kasturba Nagar constituency lies, where the incident took place, was to be held solely responsible for the deaths on account of negligence on his part inasmuch as that under his watch, there was no supervision at the time of cleaning, nor was any safety equipment provided to the workers. The....
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....urdening of a Govt. Servant. He has, thereby, contravened Rule 30 (1)(i)(ii) & (iii) of the CCS (Conduct) Rules. 1964. as amended from time to time and made applicable to the employees of Delhi Jal Board. Article No .- 2 That Sh. Shiv Hari SM Sh. hi Pal Singh, while working as As4stant Engineer under Executive Engineer (South)-11 during the year 2017, committed misconduct in as much as he in connivance with his EE and JE got the original log-sheet of the hired jetti4g- cum-suction machine bearing no: DLAGC-5513 manipulated and changed after the incident leading to loss of three precious human lives in the DM sewer manhole opposite Sam Kamm Ram Mande, 3a1 Vihar Road, Lajpat Nagar, New Delhi, on 06.08.2017 (Sunday) during manual cleaning of the manhole. The above act of Sh. Shiv Hari amounts to gross misconduct on his part, as he failed to maintain absolute integrity, devotion to duty and acted in a manner unbecoming of a Govt. Servant. He has, thereby, contravened Rule 3(1) (i), (ii) & (iii) of the CCS (Conduct) Rules, 1964, as amended from time to time and made applicable to the employees of Delhi Sal Board. " "Article No-1 Sh. Priti Pan....
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....s found to be genuine, contrary to what is stated by the investigation authorities in the second supplementary chargesheet. 9. Investigations into the incident revealed that the jetting and suction machine in question was hired from a private agency for cleaning operations in Kasturba Nagar constituency for a period of 12 months. It is alleged by the supervisor and later by the Prosecution that the Petitioners had submitted a false and fabricated copy of the log book of the jetting machine for the month of August 2017, which contained antedated signatures on the first page, and in doing so, the Petitioners along with the primary accused had been in connivance to alter the course of proceedings by presenting misleading evidence. 10. Report of the Ld. Inquiry Officer exonerated the Petitioners on merits. The conclusion arrived at was after a perusal of all the material on record and in light of facts and circumstances of the case, the Inquiry Report rendered the Petitioners free from the guilt of the charges maintained in the disciplinary inquiry proceedings. In summary, the Prosecution was not able to prove that the log book submitted by the Petitioners was forged/fabricated, ....
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....nt of articles of charges could not be proved in the disciplinary inquiry proceedings, as can be evinced from the final order of the Ld. Inquiry Officer. The Disciplinary Authority accepted and confirmed the findings of the Ld. Inquiry Officer which held that contrary to allegations made in the charges, the Petitioners did not play any role into the deaths of labourers through their negligence and on this basis were being exonerated on a careful consideration of material placed on record. 14. It is further submitted by Ld. Counsel for the Petitioners that the case of prosecution in the disciplinary proceedings against the Petitioners was based on the testimony of Kiran Pal and the logbooks produced by him. It is submitted that the Ld. Inquiry Officer concluded that neither Kiran Pal's statements nor the documents produced by him could be relied upon, on account of several contradictory statements made by him, which would go on to prove that the Petitioners had no involvement in the tragic deaths of the labourers. 15. The relevant portion of the report exonerating the Petitioners read as under :- "Article 1 Shri Priti Pant S/o Shri B.C. Pant, while workin....
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.... 1.5 Shri Kiran Pal S/o Shri Raje Ram in his statement to Shri R.S. Negi, CE (S) conducting the Preliminary Inquiry stated that (Ref. statement of Shri Bindra Parsad-PW-4, during cross examination) that the shaft of the vehicle was broken due to this vehicle was not engaged where as In his statement to Vigilance (Ref.PD-10 on 11.08-17) stated that he received a phone call on 05-08-2017 (Saturday) from Shri Satendra Kumar Srivastava, JE-CO that he (Sh Satendra Kumar Srivastava) wanted driver on 06-08- 2017 (Sunday) and accordingly Shri Manoj Kumar, Driver S/o Shri Narayan was sent on duty. 1.6 The statement of Shri Kiran Pal S/o Shri Raje Ram are contradictory to the statement given before the CE(South), who conducted the preliminary inquiry on 07-08-17 (ReEPD-11/1-3) and cross examination report of Shri Bindra Parsed PD-4( Ref. F2/ page 1041). 1.7 It is understood from the statement of Shri Kiran Pal S/o Shri Raje Ram that jetting Cum Suction Machine was out of order on 06.08.17(Sunday). Shri Kiran Pal has stated (ref. PD-10), he directed Shri Manoj Kumar, Driver S/o Shri Narayan to attend duty on 06-08.17 but it was not mentioned that he (Sh. Manoj Kumar, ....
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....rvice.Co. the agency except the statement of M/s Kleenwell Enviro Engg. Service.Co. (Ref PD- 11/7)and the statement of Shri Kiran Pal, Supervisor and Shri Manoj Kumar, Driver S/o SAH Narayan. (Ref PD10 and PD9/1.2) 1.16 Shri Rakesh Kumar S/o Shri Masicharan in his statement (PD43/1) to Vigilance on. 11-08-2017 has stated that two days before Shri Dinesh Chander, Contractor directed him to clean 25 manholes on Sant Kanwar Ram Mandir, Jal Vihar Road. He further stated that he himself and three other colleagues namely S/Sh. Yogender, Annu and Mona together had cleaned three manholes and since the fourth manhole was not opening, he went to bring a hammer and meanwhile received a phone call from Shri Manoj Kumar, Driver S/o Shri Narayan that your three colleagues have become unconscious in a manhole and you should come back at the earliest Shri Rakesh Kumar reaching at site went Into the manhole for helping the trapped labourers but due to gas stroke he became unconscious and called for help. He was brought out of the manhole by the police. Other three colleagues were taken out of manhole by Fire Department who were declared dead while reaching at a Hospital. 1.17 Shri....
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.... Shri Priti Pant, EE(South)-11-CO (Ref. PD-4/2, PD-5) to M/s Dinesh Chander, Contractor, have categorically denied that Shri Rakesh S/o Shri Masicharan and three deceased persons were ever directed to clean the sewer line opposite Sant Kanwar Ram Mandir, Jal Vihar Road, the site of the incident. He further stated that no work order for such work have ever been Issued to him for taking up such work. Shri Dinesh Chander, Contractor in his reply to the show cause notice have mentioned that one Shri Rakesh Kumar in persuance of conspiracy hatched amongst himself and other unknown DJB officials who were apparently undertaking unauthorised work of sewer cleaning and he has Implicated falsely in Fir bearing N.354/207 U/S 304 IPC at Lajpat Nagar Polite Station. He further stated that FIR apparently got registered to save the real culprits. M/s. Dinesh Chander, Contractor has further stated that his last dealing was till 2016 with Shri Rakesh Kumar and no dealing with said Shri Rakesh Kumar nor any contact with him executed. He was also not contacted telephonically with him since then, stated by Shri Dinesh Chander, Contractor, Shri Dinesh Chander, Contractor has further represented to the ....
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....he Shri Shiv Hari AE-CO and Shri Satendra Kumar Srivastava, JE-CO. There has to be an Official work older for the sewer 'cleating work awarded to M/s Dinesh Chander, Contractor. In the absence of such a Work Order and contract agreement, it could not be ascertained and firmly said that any of the COS could call M/s. Dinesh Chander, Contractor to engage labourers to do the sewer cleaning work opposite Sant Kanwar Ram Mandir on any sewer line. In this case a sewer line sizing400 mm die has been suggested by the prosecution. 1.29 In the preliminary inquiry (PD-11/1.3) report submitted by CE (South) on 10-08-2017, EE(South)-II have said to be reported that no work order for sewer cleaning was issued to M/s. Dinesh Chander, Contractor. 1.30 Further, no statement of M/s Dinesh Chnader. Contractor has been recorded to ascertain their involvement in engaging the labourers at the said incident site (Ref: reply of Shri Vikas Rathi (PW-8) in his cross examination) 1.31 When there is no official work order and a contract signed by M/s Dinesh Chander and EE(South)II, how-it could be said that the survivor and deceased persons were not provided with any safety equi....
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....re three person lost their lives. 1.40 Ref replies to the question 4 (cross examination) asked by Sh. Priti Pant-CO to Sh. Rakesh Kumar whether Sh. Mattel Kumar, driver came at the site of incident with the Suction Cum Jetting Machine. Sh. Rakesh Kumar S/o Sh. Sh. Masicharan during the cross examination by the CO and the undersigned stated that Sh. Manoj Kumar S/o Sh. Narayan, Driver came at the site of the incident without Suction Cum Jetting Machine. 1.41 In the Police statement Shri Kiran Pal. Supervisor S/o Shri Raje Ram stated that he is working for the last 10 years (Ref F4/D5) with M/s Kleenwell Enviro Engg. Service. Co. where as in PD-10 he stated that he has been working for the last 3 to 4 years with the same company (Ref cross examination Ques arid reply -2. F2). Conclusion With the above explained facts, circumstances and the available records, I find that the charges framed against Shri Priti Pant, EE (S) II under article-I is not proved. Article No.2: That Shri Priti Pant S/o Shri B.C. Pant, while working as Executive Engineer (South)41 during the year 2017 committed misconduct In as much as he, In connivance with ....
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....named Shri Priti Pant, ES-CO for any manipulation in the Log sheet. 2.7 During the Cross examination of Shri Vikas Rathi, JE(Vigilance) in reply to the question No .- 2 by Shri Priti Pant, EE(South) CO that, there are two sets of Log sheets one dulysigned by JE, AE. EE concerned (PD-21/9-16) and other not signed by them, which is authentic log sheet? In reply, Shri Vikas Rathi stated that as per practice the log sheet duly signed by JE, AE, EE on the front page is avalid log sheet and he further stated that it is not possible to accept log sheet without signature of the concerned JE,AE and EE. 2.8 On asking the Question-1 by the undersigned that how Shri Priti Pant was responsible for the fateful incident which took place on 06.08-17? From the reply of Sh Vikas Rathi, JE, PW-8; I did not found any material suggesting that Sh. Priti Pant EE (South)-Il was involved in manipulation of the log sheet or having directed to take up Sewer cleaning work. 2.9 During the cross examination of Shri Kiran Pal S/o Shri Raje Ram and Shri Manoj Kumar, Driver S/o Shri Narayan by CO and the unsersigned, no statement have been found on record to prove any change/manipulation....
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.... 2.18 I observe here that such an important paper was kept without lock and key in the vehicle (SCM). Shri Kiran Pal further stated that the vehicle was standing without lock and key and it (Vehicle) was used to be keptopen. 2.19. It is again seems to be irresponsible way of working of Shri Kiran Pal, Supervisor S/o Shri Raje Rain so called Supervisor of a responsible company M/s Kleenwell Enviro Engg. Service Co. 2.20 Ref. Qestion.15: Had you gone to Jal Sedan on 07.08-2017 with vacant Log sheet and why ?: Shri Kiran Pal stated that when I started from 'my home to Jal Sedan I did not know that I had a Log sheet and when I reached Jal Sadan, I opened my bag and a vacant Log sheet was handed over to Shri Satendra Kumar Srivastava, JE-CO. 2.21 What one may observe from foregoing paras that Shri Khan Pal was never stable in his statements and till the time he has mentioned of two log sheets one in the bag and one in the said vehicle. 2.22Once he said that vacant Log sheet was taken out from the vehicle anti was handed over to him (Shri Satendra Kumar Srivastava, JE-CO). 2.23 Another time being stated that he had a vacant Leg she....
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.... in his statement stated that it must be known to Shri Manoj Kumar, Driver S/o Narayan saying that he (Sh. Kiran Pal) could not explain about the location. 2.31 Ref. Question25: Shri Kiran Pal attended the office of SE(South) where he was asked, Did you attend the office of SE (South) and whether he was asked to send the vehicle on 06-08-2017. To this he replied in YES. 2.32 It is observed that Shri Kiran Pal's statements are not in consonance. His replies are likely to keep himself in comfortable position involving the others in this case to Shri Priti Pant, EE-CO. The erratic statements of Slid Kiran Pal S/o Shri. Raje Ram shows that he himself is involved in the episode trying to manipulate sequences and facts of the incidents which took place on 06.08-2017 causing loss of precious lives of 3 persons. 2.33 Ref. Question 05 : Shri Bindra. Prasad, AE; in charge of Jangpura Constituency in his statement to Shri R.S. Negi, CE(South) Preliminary Inquiry Officer stated that : Sh. Khan Pal said to the Inquiry Officer that the vehicle was out of order and could not be operated as the shaft of the vehicle was broken. 2.34 It is observed that The Lo....
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....ch has been attached with the preliminary enquiry report submitted by Shri R.S. Negi, then CE(South). 2.42 in a statement (PD-10) Shri Mang Kumar, Driver S/o Shri Narayan has stated that the machine was not operated as no one directed him to operate the jetting machine and in the preliminary inquiry by then CE (South) Shri Kiran Pal S/o Shri Raje Ram stated that the machine was out of order and so was not engaged (Ref. statement of Shri Bindra Prasad, PW-4) during the preliminary inquiry. There seems to be consonance in the statement that the machine was never engaged and operated and any manipulation what so ever, admittingly, done by Shri Kiran Pal S/o Shri Raje Ram; has been his wrong doing to save himself and his colleague Shri Manoj Kumar, Driver of the bitter consequences. Here I observe that whatever has been done, by Shri Kiran Pal S/o Shri Raje Ram and Shri Manoj Kumar, Driver of M/s Kleenwell Enviro Engg. Service. Co. and none of the COs have been involved in the change of log sheet and its manipulations. 2.43 The log sheets at PD-21/9-16 has been duly signed on 01-08-2017 by JE/AE/EE and ever. the subsequent pages upto 05-08-2017 have been signed by Shr....
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.... be quashed. In the context of this argument, Ld. Counsel for Petitioners states that the legal position with respect to continuance of criminal prosecution on the same set of facts in disciplinary proceedings where the allegations against the accused are found to be unsustainable and the person is held innocent on merits, is settled in a slew of Apex Court rulings. In furtherance of this submission, reliance is placed on the principles laid down in a 2:1 majority decision in Radheshyam Kejriwal v. State of West Bengal, (2011) 3 SCC 581, which was duly followed and applied in Videocon Industries Limited and Anr. v. State of Maharashtra. (2016) 12 SCC 315, and Ashoo Surendranath Tewari v. Deputy Superintendent of Police, EOW, CBI, (2020) 9 SCC 636. 18. Per contra, the Ld. APP for the State relies on a decision rendered by a three Judges Bench of the Supreme Court in State (NCT of Delhi) v. Ajay Kumar Tyagi, (2012) 9 SCC 685. In the aforementioned case, the Apex Court departed from the ruling delivered in PS Rajya v. State of Bihar, (1996) 9 SCC 1. 19. It is submitted that in State (NCT of Delhi) v. Ajay Kumar Tyagi (supra), a three Judges Bench held that none of the aforementi....
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.... on its peculiar facts. 21. It is worth mentioning that the decision in P.S. Rajya [(1996) 9 SCC 1 : 1996 SCC (Cri) 897] came up for consideration before a two-Judge Bench of this Court earlier, in State v. M. Krishna Mohan [(2007) 14 SCC 667 : (2009) 1 SCC (Cri) 922] . While answering an identical question i.e. whether a person exonerated in the departmental enquiry would be entitled to acquittal in the criminal proceeding on that ground alone, this Court came to the conclusion that exoneration in departmental proceeding ipso facto would not lead to the acquittal of the accused in the criminal trial. This Court observed emphatically that the decision in P.S. Rajya [(1996) 9 SCC 1 : 1996 SCC (Cri) 897] was rendered on peculiar facts obtaining therein. It is apt to reproduce paras 32 and 33 of the said judgment in this connection: (M. Krishna Mohan case [(2007) 14 SCC 667 : (2009) 1 SCC (Cri) 922], SCC p. 676) "32. Mr. Nageswara Rao relied upon a decision of this Court in P.S. Rajya v. State of Bihar [(1996) 9 SCC 1 : 1996 SCC (Cri) 897]. The fact situation obtaining therein was absolutely different. In that case, in the vigilance report, the delinquent officer was....
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....case at hand. Paragraph 38(vii) of the aforementioned judgment of the Supreme Court is reproduced herein again for convenience: "38. The ratio which can be culled out from these decisions can broadly be stated as follows: (i) Adjudication proceedings and criminal prosecution can be launched simultaneously; (ii) Decision in adjudication proceedings is not necessary before initiating criminal prosecution; (iii) Adjudication proceedings and criminal proceedings are independent in nature to each other; (iv) The finding against the person facing prosecution in the adjudication proceedings is not binding on the proceeding for criminal prosecution; (v) Adjudication proceedings by the Enforcement Directorate is not prosecution by a competent court of law to attract the provisions of Article 20(2) of the Constitution or Section 300 of the Code of Criminal Procedure; (vi) The finding in the adjudication proceedings in favour of the person facing trial for identical violation will depend upon the nature of finding. If the exoneration in adjudication proceedings is on technical ground and not on merit, prosecution may continue; and....
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..... Clarifying the position, the majority in Radheshyam Kejriwal case [Radheshyam Kejriwal v. State of W.B., (2011) 3 SCC 581 : (2011) 2 SCC (Cri) 721] observed that the yardstick would be to judge as to whether the allegation in the adjudication proceedings as well as the proceeding for the prosecution is identical and the exoneration of the person concerned in the adjudication proceedings is on merits. In case it is found on merit that there is no contravention of the provisions of the Act in the adjudication proceedings, the trial of the person concerned shall be an abuse of the process of the court. On the basis of the aforesaid principles, the majority proceeded to analyse the factual matrix and analysed the finding recorded by the adjudicating authority and opined when there is a finding by the Enforcement Directorate in the adjudication proceeding that there is no contravention of any of the provisions of the Act, it would be unjust and an abuse of the process of the court to permit the Enforcement Directorate to continue with the criminal prosecution." 26. Further, in Ashoo Surendranath Tewari v. Deputy Superintendent of Police, EOW, CBI, (2022) 9 SCC 636, and in J Sekar v....