Central Administrative Tribunal - Delhi
Ramesh Chander, Ex. Head Constable Of ... vs Govt. Of Nct Of Delhi (Through ... on 11 March, 2007
ORDER Shanker Raju, Member (J)
1. By virtue of this OA applicant has assailed initiation of departmental enquiry (DE) vide order dated 29.12.2004, summary of allegations, finding recorded by the enquiry officer (EO), and an order passed by the disciplinary authority on 16.1.2005, dismissing the applicant from service as well as an order passed on 8.6.2006 in appeal, up-holding the punishment.
2. Though Shri Anil Singhal, learned Counsel for the applicant has taken several legal contentions to assail the impugned orders but, at the outset, stated that entire enquiry proceedings and consequential orders are liable to be quashed and set aside for violation of Rule 15 (2) of Delhi Police (Punishment and Appeal) Rules, 1980.
3. In the above backdrop, it is stated that admittedly on a preliminary enquiry conducted, a cognizable offence has been made out against the applicant in relation to public on discharge of official duty. Accordingly, the enquiry was ordered on 29.12.2004. However, approval had not been sought from the Additional Commissioner of Police, who is the competent authority, and whatever approval had been accorded by the Joint Commissioner of Police is not in accordance with the decision of the Apex Court in Vijay Singh v. Union of India CA No. 7212/2005 decided on 23.2.2007 wherein it is obligated upon the ACP to apply its mind before according the approval. Learned Counsel would contend that the role that has to be played by the ACP has been taken over by the Deputy Commissioner of Police, who records reasons as to holding of either the disciplinary proceedings or leaving out the registration of a criminal case and investigation thereof, which has been mechanically approved by the Joint Commissioner of Police, not being a competent authority, without recording any reasons whereas such an authority would not be absolved from recording reasons in DE in the light of Rule 15 (2) of the Delhi Police (Punishment & Appeal) Rules, 1980.
4. On the other hand, learned Counsel for respondents vehemently opposed the contention and stated that a detailed note fulfilling the requirements of Rule 15 (2) of the Rules ibid has been forwarded to the Joint Commissioner of Police and approval of the same would amount to application of mind by the Joint Commissioner of Police. Accordingly, there is no violation of Rule 15 (2) of the Rules ibid, where the scope of interference is very limited. The only point to be seen is whether mandatory substantive procedure has been followed or not?
5. We have carefully considered the rival contentions of the parties.
6. Rule 15 (2) of the Rules ibid has been the subject matter of interpretation before the Apex Court in Vijay Singh's case (supra) wherein it is clearly ruled that an approval has to come from ACP only and such an approval is to be accorded after due application of mind. While the administrative authorities act as public functionaries or discharging quasi judicial function, yet the discretion has to be exercised judiciously. If no reasons are recorded, is sina qua non of non-application of mind and would amount to deemed agreement with the observations made by the authority, not competent to record finding, in a mechanical manner. It is trite that when a thing is to be done in a particular manner, no other manner should be adopted for the purpose. Accordingly, the ACP is required to record reasons as to whether on a cognizable offence made out against, a police officer is to be booked in a criminal case and on registration, investigation is to be carried out or a DE is to be held.
7. Learned Counsel for applicant has brought to our notice a decision of the Tribunal in ASI William Dung Dung v. Govt, of NCT of Delhi OA No. 503/2003 decided on 01.11.2006 wherein the Tribunal ruled that it is only the ACP who is competent to accord approval under Rule 15(2) of the Rules ibid and not the Joint Commissioner of Police. As this order of the Tribunal has been implemented vide order dated 07.902.2007, it appears that respondents have complied with the directions and accepted the dicta ruled by the Tribunal. Having not challenged in the Hon'ble High Court, the said decision has attained finality and has applicability in all fours to the present case.
8. In the result, for the foregoing reasons, leaving other grounds open, this OA succeeds and is partly allowed. Impugned orders are set aside. Applicant shall be reinstated in service forthwith. The applicant shall be entitled to all consequential benefits, except back wages. However, respondents are not precluded, if so advised, to take up the proceedings from the appropriate state in the light of the decision in Vijay Singh's case (supra). No costs.