Delhi High Court
Additional Commissioner Of Police & ... vs Shri Jagbir Singh & Anr. on 13 March, 2009
Author: A.K. Sikri
Bench: A.K. Sikri, Suresh Kait
Reportable
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: January 27, 2009.
Pronounced on : March13, 2009.
1) W.P.(C) No. 4042 of 1997
+ Additional Commissioner of Police & Ans. . . . Petitioners
through : Ms. Avnish Ahlawat, Advocate
Mr. Saurabh Chadda, Advocate
VERSUS
Shri Jagbir Singh & Ans. . . . Respondents
through Mr. R.K. Saini, Advocate
2) W.P.(C) No. 4574 of 1997
+ Additional Commissioner of Police & Ans. . . . Petitioners
through : Ms. Avnish Ahlawat, Advocate
Mr. Saurabh Chadda, Advocate
VERSUS
Ex. Constable Jai Karan & Ans. . . . Respondents
through Mr. Sachin Chauhan, Advocate
CORAM :-
THE HON'BLE MR. JUSTICE A.K. SIKRI
THE HON'BLE MR. JUSTICE SURESH KAIT
1. Whether Reporters of Local newspapers may be allowed
to see the Judgment?
2. To be referred to the Reporter or not?
3. Whether the Judgment should be reported in the Digest?
A.K. SIKRI, J.
1. Having regard to the commonality of the factual backdrop in which a legal issue arises in both these writ petitions, they were heard W.P.(C) No.4042 of 1997 etc. Page 1 of 14 together and as a necessary consequence we are deciding the same by this common judgment. For the sake of convenience, we shall take note of the facts as they appear in W.P.(C) No. 4042 of 1997 and claim without any fear of contradiction that the same factual position prevails in the other writ petition as well.
2. The respondent in this writ petition was working as a Constable in Delhi Police. He was placed under suspension w.e.f. 24.03.1987 on the ground that he was involved in a case under the Arms Act. The suspension order was, subsequently, revoked when the order dated 02.11.1989 was passed by the Competent Authority reinstating him in service. According to the petitioner-department, the respondent refused to receive letter dated 02.11.1989 vide which he was ordered to join the duty. On this basis charge-sheet was served against him on the ground that:
"The respondent was placed under suspension on 24.03.1987 was reinstated in service vide order dated 02.11.1989 he refused to receive reinstatement order on three occasions, the registered A.D. letter was also sent back with the remark that constable was not found available. He joined duty only on 06.12.1989. He had earlier absented for 433 days, 21 hours and 45 minutes on 32 different occasions during the suspension period. During the suspension period, he was not to leave the headquarters without the permission of Competent Authority. He refused to receive the copy of the reinstatement order on both occasions on 04.11.1989 and 07.11.1989, verbally stating that he would be receiving the W.P.(C) No.4042 of 1997 etc. Page 2 of 14 copy of the order when he would joint duty on 08.11.1989. On his failure to join duty on that day, he again refused to receive the copy of the said order on 15.11.1989. He absented himself for total number of 433 days, 21 hours and 45 minutes on 32 different occasions. Although he was asked not to leave the headquarters during his suspension period without the prior permission of the competent authority but he remained absent unauthorizedly during this period without getting prior permission by the competent authority. He was, therefore, charged under Section 21 of the Delhi Police Act, 1978. "
3. In the inquiry conducted, the findings were returned by the Inquiry Officer that the charges were proved. On that basis, he was dismissed from service after 22.01.1990. His appeal was also dismissed by the Appellate Authority vide orders dated 16.01.1992. At this stage, he approached the Central Administrative Tribunal, Principal Bench, New Delhi and challenged the order of disciplinary as well as the Appellate Authority, by filing application under Section 19 of the Administrative Tribunal Act. His plea was that he was not absent from duty as, during the suspension period he was not supposed to mark his presence and therefore he could not be treated as unauthorizedly absence from duty. He also submitted that even in the order placing him under suspension, no specific direction was given to him to attend to Roll Calls or to mark his presence. He W.P.(C) No.4042 of 1997 etc. Page 3 of 14 also denied the allegations that he had refused to receive the order of reinstatement on three occasions.
4. The learned Tribunal has, vide its judgment dated 25.06.1997, accepted the contentions of the respondent and allowed the OA. While setting aside the punishment orders, the following directions have been given by the Tribunal:
"The applicant will be in service forthwith and the respondents are also directed to pass appropriate orders for regularizing the period from 30.10.1992 to the date of actual reinstatement in accordance with rules and orders on the subject. We, however, make it clear that in view of the fact that one of the charges regarding his misconduct in refusal to accept the copy of the reinstatement order on more than one occasion has been established, we provide that it will be open to the disciplinary authority to initiate such action as may be necessary and to pass appropriate orders in proportion to this charge and in accordance with rules."
5. The orders passed by the Disciplinary Authority and Appellate Authority are set aside on the following grounds:
a) As regards unauthorized absence of the respondent, Rule 27 of the Delhi Police (Punishment & Appeal) Rules, 1980 stipulates that there is no requirement of personal appearance of the respondent/suspended police official on duty during the period of suspension.
Even if there was any standing order, this will not be consistent with rules and cannot be enforced upon the respondent.
W.P.(C) No.4042 of 1997 etc. Page 4 of 14
b) Though the Disciplinary Authority took into consideration his past bad record for which he was departmentally dealt with and was punished for certain other charges, that had not been made a specific charge in the instant proceedings though mandatory required under Rule 11 of the Delhi Police (Punishment & Appeal) Rules, 1980.
6. The Tribunal was thus of the opinion that as unauthorized absence was the substantial charge against the respondent on which the impugned order of dismissal had been passed by the Disciplinary Authority and upheld by the Appellate Authority, this order could not be sustained and was set aside.
7. The petitioner, however, have not eschewed the aforesaid order and feeling aggrieved, this writ petition is preferred. We may also point out, at this stage, that insofar as the charge of refusing to receive the copy of the reinstatement order is concerned, the Tribunal has not interfered with the same. Therefore, in this writ petition the only question that arises for consideration is as to whether it is incumbent upon the suspended employee to attend the Roll Calls and mark his presence at that time.
8. Learned counsel for the petitioner has referred to the following provisions of Delhi Police Act (hereinafter referred to as the Act): W.P.(C) No.4042 of 1997 etc. Page 5 of 14
"14. Effect of suspension of police officer. - The powers, functions and privileges vested in a police officer shall remain suspended while such police officer is under suspension from office:
Provided that notwithstanding such suspension such person shall not cease to be a police officer and shall continue to be subject to the control of the same authorities to which he would have been subject if he had not been under suspension.
24. Police officers to be deemed to be always on duty and to be liable to employment in any part of Delhi. - Every police officer not on leave or under suspension shall for all purposes of this Act be deemed to be always on duty and nay police officer or any number or body of police officers allocated for duty in any part of Delhi may, if the Commissioner of Police so directs, at any time, be employed on police duty in any other part of Delhi for so long as the services of the police officer or number or body of police officers may be required in such other part of Delhi.
She also drew our attention towards the Standing Order No. 123/1989, which deals with the suspension and inter alia stipulates as under:
"6. Status and treatment of officers under suspension - During the term of such suspension the powers, functions and privileges vested in him as a Police Officer shall be in abeyance, but he shall continue to be subject to the same responsibilities, discipline and penalties and to the same authorities, as if he had not been suspended.
A Police Officer under suspension shall be transferred to the Lines, if not already posted there. He shall attend all roll calls and shall be required to perform such duties and to attend such parades as the Dy. Commissioner of Police may direct, provided that he shall not perform guard duty or any other duty entailing the exercise of the powers or functions of a Police Officer; shall not be placed on any duty involving the exercise of responsibility and shall not be issued with ammunition. Police Officer under suspension shall ordinarily be confined to lines when off duty, but shall be allowed reasonable facilities for the preparation of his defence."W.P.(C) No.4042 of 1997 etc. Page 6 of 14
She further referred to Rule 26 of Delhi Police (Punishment & Appeal) Rules, 1980 as amended on 22.07.1988 which makes the following reading :
"26. Suspension - (1) Officers of the rank of an Assistant Commissioner of Police and above are authorized to suspend all police officers of subordinate rank. Inspectors of police can suspend any police officer below the rank of Sub-Inspector. The suspension of an upper subordinate shall be immediately reported to the Deputy/Additional commissioner of Police.
(2) An officer shall be released from suspension only by the gazette officer empowered to punish/appoint him.
(3) (i) During the terms of such suspension the powers functions and privileges vested in him a Police Officer shall be in abeyance but he shall continue to be subject to the same responsibilities discipline and penalties and to the same authorities, as if he had not been suspended.
(ii) A Police Officer under suspension shall be transferred to the lines if not already posted there. He shall attend all roll calls and shall be required to perform such duties and to attend such parades as the Deputy Commissioner of Police may direct provided that he shall not perform guard duty or any other duty entailing the exercise of the powers or functions of a Police Officer, shall not be placed on any duty involved the exercise of responsibility and shall not be issued of with ammunition. A Police officer under suspension shall ordinarily be confirmed to lines, when off duty, but shall be allowed responsible facilities for the preparation of his defence when transferred to the line, lower or upper subordinate shall deposit their kits in the line and shall not wear any article of uniform till they are reinstated or specifically permitted by the Commissioner of Police as contained in sub-rule (iii) of Rule 15 of the Delhi Police (General Conditions of Service) Rules, 1980."
9 Her submission is that this amendment in Rule 26 was simply a clarification of what is contained in Section 14 of the Act. She argued that on conjoint reading of the aforesaid provisions, it would manifest that even when a Police Officer is placed under suspension, he does not cease to be a Police Officer; the only embargo is that he W.P.(C) No.4042 of 1997 etc. Page 7 of 14 cannot discharge the functions of a Police Officer and his powers and privileges as police officer are suspended. Therefore, he is supposed to attend the Roll Calls. This was clear from the provisions of Section 24 of the Delhi Police Act, as per which a police officer is deemed to be always on duty and duty of roll call would remain intact even after suspension. Further, sub-rule 3 (i) which was added vide amendment dated 22.07.1988 was only clarificatory of the provisions contained in Section 14 of the Act as per which even a suspended employee was continued to be subject to the same responsibilities, discipline and penalties, as if he had not been suspended. Learned counsel for the petitioner referred to the following judgments of the Supreme Court in support of her submissions:
i) State of Punjab & Ors. Vs. Dharam Singh, (1997) 2 SCC 550.
ii) State of Punjab & Ors. Vs. Charanjit Singh, JT 2003 (Suppl. 1) SC 319.
iii) Maan Singh Vs. Union of India & Ors. (2003) 3 SCC 464.
10. Learned counsel for the respondent, on the other hand, reiterated his submissions, which was made before the Tribunal, viz.:
a) In the order placing him under suspension, there was no direction to him to attend the roll calls or to mark his presence at the duty place;
b) The only direction given to the respondent was that he should not leave the Headquarters during the suspension period which he had dutifully obeyed.W.P.(C) No.4042 of 1997 etc. Page 8 of 14
c) Rule 27 of the Rules do not contain any provision which mandates the personal appearance of a suspended Police Official on duty during the period of suspension.
d) Attention of the Tribunal was not drawn towards Standing Orders dated 31.03.1989 specifically. Only a general statement was made about the Standing Orders and therefore, contention of the respondent before the Tribunal was that even if there is a standing order, the same could not be inconsistent with the Rules and therefore could not be enforced.
e) On his suspension, he was attached to Police Lines.
According to the respondent one has to keep subtle distinction between the Police Officer posted in Police Lines while on duty and another police officer who is attached to Police Lines on suspension. A person in the latter category is not on active duty.
f) Amendment to Rule 26 was made only in the year 1988, which would not apply to the case of the petitioner who was suspended w.e.f. 24.03.1987 when there was no such provision in Rule 26.
11. We have considered the submissions of both the counsel and have also gone through the case law relied upon by them. We had already W.P.(C) No.4042 of 1997 etc. Page 9 of 14 reproduced the language of Section 14 of the Act. Rule 16.21 of Punjab Police Rules is pari materia with Section 14 of Delhi Police Act, 1980 and reads as under:
"16.21 Status and treatment of officer under suspension. - (1) A police officer shall not by reason of being suspended from office cease to be a police officer.
During the term of such suspension the powers, functions and privileges vested in him as a police officer shall be in abeyance, but he shall continue subject to the same responsibilities, discipline and penalties and to the same authorities, as if he had not been suspended."
The interpretation of that Rule came up for consideration before the Supreme Court in the case of Dharam Singh (supra). In that case also the question was as to whether a suspended employee was supposed to report for duty or not.
Interpreting the rule, the Court held that even a suspended Police Officer was required to attend the Roll Calls and be available to the authorities is clear from the contents therein. Following passage from this judgment manifests this:
"A reading of it would clearly indicate that even during the period of suspension the police officer is required to attend to roll-call and be available to the authorities. The payment of subsistence allowance, as ordered, under the suspension rule is one facet of it and his duty to be present is another. Non- payment of subsistence allowance does not entitle a delinquent officer to be absent from duty. It is his duty to claim subsistence allowance, go to the office and collect subsistence allowances and if it is not paid, necessary representation to the higher authorities and, if the grievance is of redressed, to the appropriate forum seeking payment, may be made. But that does not mean that the delinquent officer, in the face of the express rule, can absent himself from duty. Under these circumstances, the conclusion W.P.(C) No.4042 of 1997 etc. Page 10 of 14 reached by the disciplinary authority that he was willfully absent from duty is well justified."
12. Having regard to the aforesaid ruling of the Apex Court, we have no option but to accept the submissions of the learned counsel for the petitioner herein to the effect that even under suspension, the respondent was under obligation to attend roll-calls and be available to the authorities.
13. The aforesaid interpretation would also buttress the submissions of the learned counsel for the petitioner that amendment to Rule 26 with addition of sub-rule (3) would only be clarificatory in nature as that mandate is already provided in Section 14 of the Act. The purpose was thus to put doubts, if any, to rest.
14. Significantly, on this aspect consistent view is taken by the Supreme Court, viz., insofar as attending the roll-calls by the Police Official is concerned. It is clear from the reading of another judgment of the Supreme Court in Charanjit Singh (supra) in view of the following observations therein:
"6. The submission of the learned counsel appearing for the respondent that since the respondent was under suspension, therefore there was no occasion for him to seek permission for leave, is also erroneous. The order of suspension dated 24.11.1984 stipulated that the respondent shall remain present in police lines and will attend all the roll calls and parades and he was further ordered not to leave station without prior permission."
15. No doubt, in this case, even the suspension order stipulated that the suspended employee will attend all the roll-calls and parades. W.P.(C) No.4042 of 1997 etc. Page 11 of 14 However, absence of such a stipulation in the suspension order in the case of respondent herein would not give him any benefit. We record this for more than one reasons:
a) In view of statutory provision contained in Section 14 of the Act, obligation was cast upon the respondent to attend the roll-
call even if no specific stipulation is there under the suspension order.
b) More importantly, the respondent himself understood to be so inasmuch as after the suspension order he attended the roll- calls initially, but stopped absenting afterwards. If there was no such requirement, it is baffling as to why in first instance the respondent had attended the roll-calls. This conduct of the respondent amply demonstrates that he knew his duty to attend the roll-calls but stopped doing so afterwards, which would clearly amount to his unauthorized absence.
16. We find that the Tribunal has referred to the judgment of the Supreme Court in the case of V.P. Gindroniya Vs. State of Madhya Pradesh & Ans. AIR 1970 SC 1495. That was, however, a case of a Civil Servant under the employment of Madhya Pradesh. The Court had considered the right of the employer to place his employee under suspension. This judgment, according to us, does not advance the case of the respondent at all. Moreover, in the present case, we are W.P.(C) No.4042 of 1997 etc. Page 12 of 14 concerned with the statutory provisions contained in Delhi Police Act and the Rules on the basis of which the case is to be decided.
17. The impugned judgment dated 05.06.1997 passed in OA No. 579/1992 and the judgment dated 09.07.1997 passed in OA No. 503/1992 are accordingly set aside and the two OAs preferred by the respondents in these two Writ Petitions are dismissed. Writ Petitions are allowed in the aforesaid terms.
(A.K. SIKRI) JUDGE (SURESH KAIT) JUDGE March 13, 2009.
pmc W.P.(C) No.4042 of 1997 etc. Page 13 of 14