Central Administrative Tribunal - Delhi
Constable Chander Bhan vs Govt. Of Nct Of Delhi Through on 26 May, 2010
aCentral Administrative Tribunal
Principal Bench, New Delhi.
OA-577/2007
With
OA-1426/2006
OA-2282/2006
MA-1962/2006
OA-655/2007
MA-775/2007
OA-1634/2008
New Delhi this the 26th day of May, 2010.
Honble Mr. Justice V.K. Bali, Chairman
Honble Mr. L.K. Joshi, Vice-Chairman(A)
Honble Mr. N.D. Dayal, Member(A)
OA-577/2007
Constable Chander Bhan,
R/o VPO : Kawali,
Distt : Sonepat, Haryana. . Applicant
(through Sh. Anil Singal, Advocate)
Versus
1. Govt. of NCT of Delhi through
Commissioner of Police,
Police Headquarters,
IP Estate, New Delhi.
2. Jt. Commissioner of Police,
R.P. Bhawan, New Delhi.
3. D.C.P. (Rashtrapati Bhawan)
Rashtrapati Bhawan,
New Delhi. . Respondents
(through Sh. Padma Kumar S., proxy for Ms. Jyoti Singh, Advocate)
OA-1426/2006
ASI (Dvr) Suresh Chand,
R/o VPO : Bhatgaon,
The/Distt : Sonepat,
Haryana. .. Applicant
(through Sh. Anil Singal, Advocate)
Versus
1. Govt. of NCT of Delhi
through Commissioner of Police,
Police Headquarters,
IP Estate, New Delhi.
2. Jt. Commissioner of Police,
Armed Police, PHQ,
IP Estate, New Delhi.
3. D.C.P. (3rd Bn. DAP)
Vikas Puri Lines,
New Delhi.
4. Deputy Commissioner of Police,
Traffic (NDR), PHQ,
IP Estate, New Delhi. .. Respondents
(through Mrs. Sumedha Sharma, Advocate)
OA-2282/2006, MA-1962/2006
SI Soban Baraik,
S/o late Sh. Sukh Nath,
R/o 6-B-60, Prahlad Pur,
New Delhi-44. . Applicant
(through Sh. Sachin Chauhan, Advocate)
Versus
1. Govt. of NCTD through
Commissioner of Police,
Police Headquarters,
IP Estate, New Delhi.
2. Joint Commissioner of Police,
Southern Range through
Police Headquarters,
IP Estate,
MSO Building,
New Delhi.
3. Dy. Commissioner of Police,
South-West District through
Police Headquarters,
IP Estate, MSO Building,
New Delhi. .. Respondents
(through Ms. Jyoti Singh, Advocate)
OA-655/2007, MA-775/2007
1. ASI Raj Singh,
R/o 7/242, Gali No.4,
Daya Nand Nagar,
Bahadurgarh,
Haryana.
2. Head Constable Sat Pal,
R/o E-617, Tajpur Pahri,
Badarpur, New Delhi-44.
3. Constable Rakesh,
R/o H.No. 42, Type-I,
Police Colony,
Hauz Khas,
New Delhi-16. .. Applicants
(through Sh. Anil Singal, Advocate)
Versus
1. Govt. of NCT of Delhi through
Commissioner of Police,
Police Headquarters,
IP Estate, New Delhi.
2. Jt. Commissioner of Police,
PCR & Comn., PHQ,
IP Estate, New Delhi.
3. DCP/PCR,
Police Headquarter,
IP Estate, New Delhi. . Respondents
(through Ms. Jyoti Singh, Advocate)
OA-1634/2008
Constable Dev Raj,
R/o Dhani : Palaski,
Post : Nimod,
Tehsil : Neemkathana,
Distt : Sikar, Rajasthan. .. Applicant
(through Sh. Anil Singal, Advocate)
Versus
1. Govt. of NCT of Delhi through
Commissioner of Police,
PHQ, IP Estate, New Delhi.
2. Joint C.P. (Armed Police)
PHQ, IP Estate, New Delhi.
3. Sh. V.A. Gupta (DANIPS Cadre Group B)
DCP (3rd Bn. DAP)
Vikas Puri Lines, New Delhi.
4. Jt. Commissioner of Police
Traffic, PHQ, IP Estate,
New Delhi.
5. DCP (Traffic/SR)
PHQ, IP Estate,
New Delhi. . Respondents
(through Sh. Ram Kanwar, Advocate)
O R D E R
Mr. N.D. Dayal, Member (A) The applicants in these cases are police officers of subordinate rank who have been awarded punishments following Departmental Enquiries (DE) which were ordered with prior approval of the Joint Commissioner of Police instead of the Additional Commissioner of Police concerned specified in rule 15(2) of the Delhi Police (Punishment & Appeal) Rules, 1980, (hereinafter referred to as the Rules).
2. When a plea was taken on behalf of the applicant in OA-577/2008 that such violation of Rule 15(2) had rendered the DE invalid and consequent penalty unsustainable in law, as already held in OAs-503/2006 and 1966/2006, the Division Bench hearing the matter finding itself unable to agree with the Co-ordinate Benches, particularly in view of the reference by respondents to a judgment of the Honble High Court of Delhi in Joint Commissioner of Police & Ors. Vs. Sube Singh & Ors., 99(2002) DLT 37(DB), made a reference for constitution of a Larger Bench.
3. This Full Bench has therefore been constituted to consider the following question which has been referred by the Division Bench in OA-577/2007:-
Whether obtaining of prior approval of the Joint Commissioner of Police concerned instead of the Additional Commissioner of Police would meet the requirement of Rule 15(2) of the Delhi Police (Punishment & Appeal) Rules, 1980.
4. We have heard the learned counsel for the parties. Identical questions are involved in this batch of OAs. For convenience we have taken the facts mainly from OA-577/2007.
5. Rule 15(2) of the Rules is reproduced below:-
In cases in which a preliminary enquiry discloses the commission of a cognizable offence by a police officer of subordinate rank in his official relations with the public, departmental enquiry shall be ordered after obtaining prior approval of the Additional Commissioner of Police concerned as to whether a criminal case should be registered and investigated or a departmental enquiry should be held.
6. The learned counsel for the applicants has contended that the ratio of the judgment of the Honble High Court of Delhi in Sube Singh & Ors. (supra) would not be applicable to the facts of the present case because the question posed by the Court was different from that which arises in these OAs and Rule 15(2) of the Rules, a statutory provision, was not under consideration. He draws attention to the first para of the judgment where the Court has made clear that the question involved in the Writ Petitions before it was whether Joint Commissioner of Police can be a Disciplinary Authority of the respondents of the Writ Petitions. Our attention is also drawn to Para-24 where the Court has declared that it was not concerned as to whether the procedure for holding a departmental proceeding had strictly been followed or not. It is submitted that even in Para-25 of the judgment where certain conclusions have been recorded, it has been stated that the Joint Commissioner of Police would be officers of equal rank, if not higher rank to that of the Additional Commissioner of Police for the purpose of the said Rules, but the latter did not include Rule 15 (2) of the Rules.
7. It is next pointed out that the Joint Commissioner of Police is neither included in Section 21 of the Delhi Police Act, 1978 (hereinafter referred to as the Act) which empowers officers such as Commissioner of Police, Additional Commissioner of Police, Deputy Commissioner of Police etc. to award punishments to any police officer of subordinate rank, nor in Section 23 of the Act, which prescribes the Appellate Authorities. In fact, as would be evident from Rule 23(6) of the Rules, when a punishment order is passed by the Deputy Commissioner of Police, who is appointing authority for officers of subordinate rank, the Appellate Authority has been prescribed to be the Additional Commissioner of Police. Further, an appeal against the punishment order passed by the Additional Commissioner of Police lies before the Commissioner of Police. It is contended that Additional Commissioner and Joint Commissioner of Police are separate and distinct from each other. Therefore, the intervention of Joint Commissioner in terms of Rule 15(2) of the Rules may be understandable only if Additional Commissioner of Police is not available.
8. On behalf of the respondents the learned counsel have brought to notice that Section 21 of the Act, empowers not only the specified officers but also any other officer of equivalent rank to award punishments to any police officer of subordinate rank as clearly recorded therein. In this context the respondents rely upon Para-25 of the judgment in the case of Sube Singh (supra) where the Court has concluded that the Joint Commissioner of Police would be of equal if not higher rank than Additional Commissioner of Police. The said para is reproduced below:
25. Herein, however, the posts of Additional Commissioner of Police had been re-designated as Joint Commissioner of Police by the Central Government. Thereby, those who are now designated as Joint Commissioner of Police, do not cease to be Additional Commissioner of Police, so far as their jurisdiction to exercise the statutory power is concerned. No new power has been conferred upon the said authority nor a power which had been conferred upon them had been taken away by the Administrator. It is true that in terms of Section 4, the police force acts under the control of the Administrator but even if the arguments advanced by the learned Counsel for the respondents is accepted, in the absence of such a notification, the Additional Commissioners who were re-designated as Joint Commissioner, would continue to discharge their statutory function of Additional Commissioner. Furthermore, from the definition of Appointing Authority as contained in Rule 3(i), it would appear that not only the Additional Commissioner of Police but any other person of equal rank would also come within the purview thereof. Thus, the Joint Commissioner of Police for the purpose of the said Rules, would be officers of equal rank, if not higher rank to that of the Additional Commissioner of Police. The learned counsel clarified that the Rule referred to is noted in Para-16 of the judgment as Rule 3(i) of the Delhi Police (Appointment & Recruitment) Rules, 1980.
9. It is further submitted that as envisaged in Article 311(1) of the Constitution, the Honble High Court had, in Para-30 of the judgment, noticed the settled law that an authority higher than the appointing authority could also exercise the disciplinary powers. It was observed:-
The question raised herein is no longer res integra in view of the decision of the Apex Court in Ram Kishan v. Union of India and Ors., (1995)6 SCC 157, wherein it has been categorically held that even an Additional Commissioner of Police can pass an order of dismissal which is otherwise required to be passed by Deputy Commissioner of police. Yet again in Balbir Chand v. Food Corporation of India and Ors., (1997)3 SCC 371, it has been held :
.It is a well settled legal position that the authority lower than the Appointing Authority cannot take any decision in the matter of disciplinary action. But there is no prohibition in law that the higher authority should not take decision or impose the penalty as the primary authority in the matter of disciplinary action...
10. In this background the learned counsel for the respondents contend that the answer in Para-32 of the judgment to the question posed by the Court only confirms the legality of the decision taken by the Joint Commissioner of Police. The said para is as follows:-
Thus, only because the name of the Joint Commissioner was not mentioned, keeping in view the fact that the said authority had been exercising all the powers and functions of the Additional Commissioner of Police, in the statutory function exercised by him cannot be said to be non-est in the eye of law. The learned Tribunal, therefore, in our opinion was not correct in holding that as the post of Joint Commissioner of Police created by upgrading the post of Additional Commissioner of Police has not been mentioned in the Police Act, he being senior to the latter, the orders of punishment cannot be sustained.
11. The principal contention raised by learned counsel for the applicant has been that Rule 15(2) of the Rules was not before the Honble High Court in Sube Singh (supra) and this being a statutory Rule, once the law required a particular thing to be done in a particular manner then it must be strictly adhered to. We find that in the order dated 24.04.2008 of a Full Bench of this Tribunal in OA-94/2007, which was presided over and authored by one of us (Justice V.K. Bali, Chairman), the Tribunal was dealing with the question as to whether it was required to record reasons while giving opinion under Rule 15(2) of the Rules for either registration and investigation of a criminal case or the holding of a departmental enquiry. While considering the submissions made and the case law relied upon by the parties, it was inter-alia noticed that although in the judgment of the Honble Supreme Court in Vijay Singh Vs. UOI & Ors., 2007(3) SCALE 581 the main issue was that prior approval of the Additional Commissioner of Police had not been obtained in violation of this Rule, the Apex Court had held in Para-5 thereof that:-
A reading of Rule 15(1)&(2) together and the language employed therein clearly discloses that a preliminary enquiry is held only in cases of allegation, which is of weak character and, therefore, a preliminary enquiry is to be held to establish the nature of default and identity of defaulter; to collect the prosecution evidence; to judge quantum of default and to bring relevant documents on record to facilitate a regular departmental enquiry. In cases, were specific information is available, a preliminary enquiry is not necessary and a departmental enquiry may be ordered by the disciplinary authority straightway. It is because of this reason sub-rule 2 of Rule 15 is couched in such a way as a defence to the delinquent officer. The Additional Commissioner of Police being higher in hierarchy next to DGP, the requirement of his approval is mandatory, so that the delinquent officer is not prejudiced or harassed unnecessarily in a departmental enquiry
12. The Full Bench further took note of Section 21(3) of the Act which envisages both prosecution and punishment for any offence committed and observed that there is nothing in Rule 15(2) that judicial prosecution would normally follow when investigation establishes a prima-facie case. The prior permission envisaged under Rule 15(2) is only a subjective satisfaction to choose one course of action simply with a view to avoid unnecessary harassment to a police officer. As such no right of the delinquent officer is involved to seek criminal prosecution or departmental enquiry. If one course may be preferred by the Additional Commissioner over the other it cannot be said that the delinquent officer had been prejudiced. Since the Rules were found to be applicable from Constables to Inspectors who are the persons normally dealing with the public the Full Bench further opined in Para-13 that:-
..It is not unknown that persons making complaints or dealing with men in uniform may not be satisfied and some times may even go to make complaints against the police officials/officers, if things do not happen or are not done the way they want, and thus make complaint against them. The Additional Commissioner of Police is in the hierarchy of very high ranking officers, next only to the Commissioner of Police in Delhi Police. The Additional Commissioner would have hardly any public dealings. He is in a position to take decisions independently and would also be in a position to overrule the decisions taken by punishing authorities under the Rules, who are far below in hierarchy than him. The safeguard of seeking prior approval of the Additional Commissioner is only with the purpose to see that a police official may not be unnecessarily harassed, which will bring down the morale in the police force in rank and file. The Bench went on to hold that while exercising powers as to whether criminal case be registered and investigated or departmental proceedings should be held in terms of Rule 15(2) of the Rules there was no need to record reasons for opting either course of action.
13. In this view of the matter, it is also significant to note that the Constitution of India is the supreme law in the country. Article 311(1) affords protection against dismissal or removal by an authority subordinate to the appointing authority and reads as under:-
Art. 311. (1) No person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed. If the Joint Commissioner of Police having been held to be equal if not higher in rank to the Additional Commissioner can exercise disciplinary powers with respect to the Constitutional guarantee provided in Article 311, it cannot be said that he should be held incompetent to take a decision in terms of Rule 15(2) of the Rules, which carries no Constitutional guarantee and is only one of the Rules of procedure forming part of a disciplinary proceedings and in the nature of a guideline to prevent likelihood of harassment and for enforcement of supervision against possible misuse sometimes by officers at lower levels. In this situation, it would not be of assistance to rely upon the law that action must be taken within the four corners of the statute, as contended on behalf of the applicants.
14. The reference made by the Division Bench is therefore replied as follows:-
Obtaining of prior approval of the Joint Commissioner of Police concerned instead of the Additional Commissioner of Police would meet the requirement of Rule 15(2) of the Delhi Police (Punishment and Appeal) Rules, 1980.
15. The individual OAs be listed before the Division Bench for consideration and appropriate orders.
(N.D. Dayal) (L.K. Joshi) (V.K. Bali) Member(A) Vice-Chairman (A) Chairman /vv/
5. The learned counsel for the applicants contends that in these batch of cases the above rule has been violated because the departmental enquiry against the applicants was ordered with prior approval of the Joint Commissioner of Police and not the Additional Commissioner of Police concerned. The judgment of the Honble High Court of Delhi in the case of Joint Commissioner of Police and Others Vs. Sube Singh & Ors., [99(2002) Delhi Law Times 37(DB)] would not be applicable because the question posed by the Court was as to whether the Joint Commissioner of Police could be a Disciplinary Authority in the case of the applicants and was therefore unrelated to the question of violation of Rule 15(2) of the Rules. Besides in terms of the letter dated 17.04.2007 at Annexure A-11 to OA-577/2007 the first Appellate Authority of the Additional Commissioner of Police is the Joint Commissioner of Police/ Headquarters (PHQ). The two posts are therefore separate and distinct in some units particularly in traffic. The learned counsel has drawn attention to Para-25 of the judgment in Sube Singh (supra) particularly the last two lines thereof whether the Court had observed that the Joint Commissioner of Police for the purpose of the said Rules would be officers of equal rank if not higher rank to that of the Additional Commissioner of Police. It is pointed out that the said Rule did not include Rule 1592) which was not before the Court. The learned counsel further draws attention to Para-9 of the judgment which refers to Section 21 of the Delhi Police Act and but in this Section the punishment to an officer of a subordinate rank can be awarded mentioned therein by the officers holding the various ranks from Commissioner of Police to Additional Commissioner of Police but the Joint Commissioner of Police is not mentioned therein. Further in Para-18 of the judgment it has been noted by the Court that for all officers till the rank of Inspector of Police the appointing authority would be Deputy Commissioner of Police whereas the Additional Commissioner of Police would be the Appellate Authority. As such it is argued that the intervention of the Joint Commissioner of Police may be understandable only if the Additional Commissioner of Police would not suffice to meet the requirement of Rule 1592) of the Rules.
6. On behalf of the respondents it has been pointed out that the powers of punishment referred to in Section-21 of the Delhi Police Act , 1980 are subject to the provisions to Article 311 of the Constitution and can be exercised in terms of the provisions of Section 21(1) not only by the officers whose designation are mentioned therein but also by any officer of equivalent rank. The Constitution of India is the supreme law in the country and one of the safeguards provided in Article 311(1) is that no person holding civil post under the units or such shall be dismissed/revoked by any authority subordinate to that he was appointed. However, the law is well settled as also noticed by the Honble High Court in Para-30 of the judgment in the case of Sube Singh (supra) as under:-
The question raised herein is no longer res integra in view of the decision of the Apex Court in Ram Kishan v. Union of India and Ors., (1995)6 SCC 157, wherein it has been categorically been held that even an Additional Commissioner of Police can pass an order of dismissal which is otherwise required to be passed by Deputy Commissioner of police. Yet again in Balbir Chand v. Food Corporation of India and Ors., (1997)3 SCC 371, it has been held :
.It is a well settled legal position that the authority lower than the Appointing Authority cannot take any decision in the matter of disciplinary action. But there is no prohibition in law that the higher authority should not take decision or impose the penalty as the primary authority in the matter of disciplinary action.. Therefore, even the provision contained in Article 311 of the Constitution Has been interpreted by the Apex Court to lay down the law as above it would not be tenable to argue that the provisions of Rule 15(2) specifying prior approval by Additional Commissioner of Police concerned would not permit prior approval to be taken of the higher authority than the Additional Commissioner concerned. It is urged that the purpose of this Rule is to prevent the likelihood of another harassment to the person who may be involved in such a case and it carries no constitutional guarantee. It may be that the Court was not concerned as to whether the procedure for holding a departmental proceeding has strictly been followed or not, it came to the conclusion as expressed in Para-25 of the judgment as under:-
Herein, however, the posts of Additional Commissioner of Police had been re-designated as Joint Commissioner of Police by the Central Government. Thereby, those who are now designated as Joint Commissioner of Police, do not cease to be Additional Commissioner of Police, so far as their jurisdiction to exercise the statutory power is concerned. No new power has been conferred upon the said authority nor a power which had been conferred upon them had been taken away by the Administrator. It is true that in terms of Section 4, the police force acts under the control of the Administrator but even if the arguments advanced by the learned Counsel for the respondents is accepted, in the absence of such a notification, the Additional Commissioners who were re-designated as Joint Commissioner, would continue to discharge their statutory function of Additional Commissioner. Furthermore, from the definition of Appointing Authority as contained in Rule 3(i), it would appear that not only the Additional Commissioner of Police but any other person of equal rank would also come within the purview thereof. Thus, the Joint Commissioner of Police for the purpose of the said Rules, would be officers of equal rank, if not higher rank to that of the Additional Commissioner of Police. The Rule is more of a guideline for enforcement of supervision as there could be possible misuse sometimes by officers at lower levels to protect officers from criminal prosecution by confining to disciplinary action. This might have been the reason to incorporate such a Rule and it is conceivable to assume that a person would have preferred a prosecution to a disciplinary action. Perhaps, it may have been possible for criminal proceedings to be initiated but if only disciplinary action was taken, it could not have been said to have caused prejudice since the Rule is more of a guideline for enforcement of supervision, as there could be possible misuse sometimes by officers at lower levels to protect officers from criminal prosecution by confining to disciplinary action. This might have been the reason to incorporate such a rule and it is not conceivable to assume that a person would have preferred a prosecution to a disciplinary action.
7. As such in consonance with the observations of the Honble High Court it has been contended on behalf of the respondents that as Joint Commissioners had become the repository of powers of the Additional commissioner, any order passed by them in that capacity cannot be held to be illegal and ratio of the judgment must necessarily be followed in the facts and circumstances of the present cases.
8. We are inclined to agree with the stand taken by the respondents and that the judgment of the Honble High Court is relevant to the present batch of cases and determines the controversy herein. We, therefore, answer the reference as follows:-
Obtaining of prior approval of the Joint Commissioner of Police concerned instead of the Additional Commissioner of Police would meet the requirement of Rule 15(2) of Delhi Police (Punishment & Appeal) Rules, 1980. (N.D. Dayal) (L.K. Joshi) (V.K. Bali) Member(A) Vice-Chairman (A) Chairman In OA-577/2007 a plea was taken before the Division Bench that the departmental enquiry held against the applicant was invalid is mainly on the ground of violation of provisions of Rule 15(2) of the Delhi Police (Punishment & Appeal) Rules, 1980 (hereinafter referred to as Rules). As such the punishment awarded could also not be sustained in law. It had been pointed out that the departmental enquiry had been ordered with prior approval of the Joint Commissioner of Police instead of the Additional Commissioner of Police concerned contrary to the Rules in question. It was further pointed out that in OAs-503/2006 and OA-1966/2006 the orders initiating the DE were set aside with consequential benefits on such ground and the directions of the Tribunal were implemented. Since the Division Bench having considered the matter upon hearing the parties found itself unable to agree with the decisions of the Co-ordinate Benches, the following reference was made for consideration by a Larger Bench for an authoritative pronouncement in the matter. Thereafter other OAs wherein a similar issue had cropped up were also tagged with OA-577/2007.
11. A Full Bench of this Tribunal in OA-94/2007 in its order dated 24.04.2008 presided over and authored by one of us (Hon. Mr. Justice V.K. Bali, Chairman) was dealing with the question as to whether it was required to record reasons while giving the opinion for either registration and investigation of a criminal case or the holding of a departmental enquiry. While considering the submissions made and the case law relied upon the Bench noticed the judgment of the Honble Supreme Court in Vijay Singh Vs. UOI & Ors., 2007(3) SCALE 581 wherein the principle contention of the applicant was that prior approval of the Additional Commissioner of Police had not been obtained in violation of Rule 15(2) of the Rules. In Para-5 of the judgment the Court held as under:-
A to A It was therefore opined by the Bench that a delinquent officer would have no right to seek criminal prosecution or departmental enquiry if one course may be preferred by the Additional Commissioner over the other it cannot be said whatsoever that the delinquent officer had been prejudiced. This is all the more so since Section 21(3) of the Act would indicate that if prosecution is ordered departmental enquiry is not barred and the converse of the same is also true. As such no right of the delinquent officer is involved the Bench further observed keeping in view the law noticed in the order that the Additional Commissioner of Police may be a statutory authority but would not be a quasi judicial authority for the purpose of Rule 15(2) nor was it required to act judicially. There is nothing in Rule 15(2) that judicial prosecution would normally follow when investigation of the criminal case establishes a prima-facie case. The prior permission envisaged under Rule 15(2) is only a substantive satisfaction to choose one course of action simply with a view to watch unnecessary harassment to a police officer against him. There may be allegations constituting offences in relation to his official dealings with the public. It was further observed by the Full Bench that the Rules are applicable from Constables to Inspectors where the persons normally dealing with the public. It has been observed that:-
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