Central Administrative Tribunal - Delhi
Asi Rajbir Singh vs The Govt. Of Nct Of Delhi on 25 October, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No.3761/2012 New Delhi this the 25th day of October, 2013 Honble Mr. Sudhir Kumar, Member (A) Honble Mr. A.K.Bhardwaj, Member (J) ASI Rajbir Singh, S/o Shri Hoshiyar Singh, R/o A-224, Vijay Colony, Syndicate Bank Wali Gali, Bawana, Delhi. Applicant (By Advocate Mr. Yogesh Sharma) VERSUS 1. The Govt. of NCT of Delhi Through the Chief Secretary, New Secretariat, New Delhi. 2. Joint Commissioner of Police, South-East Range, Police Headquarter, MSO Building, I.P.Estate, New Delhi. Respondents (By Advocate Shri N.K.Singh for Mrs. Avnish Ahlawat ) O R D E R Honble Mr. A.K.Bhardwaj, Member (J):
As can be gathered from the pleadings of the parties, the applicant being involved/arrested in the case registered vide FIR No.34/08 u/s 7/13 (1) (a) & (d) 13 (2) of POC Act read with 384/120-B/34, IPC, PS-Anti-Corruption Branch was placed under suspension w.e.f. 17.10.2008 under the provisions of Delhi Police (Punishment and Appeal) Rules, 1980 vide order dated 27.10.2008 along with two other officers, namely, Inspector Kishan Gopal Tyagi and SI Mukesh Kumar Singh. In the present OA filed by him, he has prayed for declaration to the effect that the action of the respondents in not reviewing the said suspension order since 2008 is illegal, arbitrary and against the law and also for issuance of direction to them to review the suspension order and to revoke the same. Mr. Yogesh Sharma, learned counsel for applicant pleaded:-
That in terms of Standing Order No 123/2008 dated 30.11.2009, the order of suspension issued by Deputy Commissioner needs to be approved by the Joint/Additional Commissioner of Police before being continued beyond a period of six months and ordinarily the extension beyond six months should not be more than three months.
In terms of the minutes of weekly crime review meeting held on 14.12.202 under the chairmanship of Commissioner of Police, cases of suspended employees involved in corruption cases and drawing 75% of subsistence allowance need to be examined for reinstatement.
In terms of order dated 28.02.2013, a large number of lower and subordinates staff who were placed under suspension on different dates have been reinstated.
The applicant is due to retire on 31.10.2013.
2. On the other hand, Mr. N.K.Singh, learned proxy counsel for respondents relied upon the judgment of Honble Delhi High Court dated 15.02.2008 in Union of India and Ors Vs. Sub Inspector Sanjay Sharma ( W.P. (C) No. 2862/2007) and contended that there is no mandate for compulsory review of suspension of subordinate staff in Delhi Police. He specifically referred to Para 10 and 11 of the judgment.
3. We have heard counsel for parties and perused the record. In the year 2007, while posted in Crime Branch, the applicant was member of the team constituted for investigation of the criminal case registered vide FIR No.356/07 which was being investigated by Inspector K.G.Tyagi. He was arrest witness against the accused, namely, Gopal Krishan Agrawal in the subject case. The charge sheet in the case was filed in the month of March 2008 and the charges were framed by the concerned court. All the accused including Gopal Krishan Agrawal were being tried for murder. In the month of October, 2008, Mr. Abhinav Agrawal son of accused Gopal Krishan Agrawal made a complaint dated 15.10.2008 to Addl. CP/ACB, GNCT of Delhi against Inspector K.G.Tyagi, IO of the case, applicant and SI Mukesh Kumar Singh alleging demand of bribe and extortion to help the accused in the case. The complaint was based on a CD of sting operation. On 16.10.2008, a criminal case bearing FIR No. 34/08 (ibid) was registered at PS Anti Corruption Branch, GNCT of Delhi. On 17.10.2008, the applicant and the aforementioned members of the investigation team were arrested. As a result, the applicant was placed under suspension. The investigation report (under Section 173 of Cr PC)/charge sheet in the aforementioned case was filed on 25.03.2009. The learned Special Judge found that the order dated 9.02.2009 whereby the prosecution of the applicant was sanctioned was invalid, thus he passed the order dated 30.07.2012 discharging the applicant from the criminal case. Nevertheless, the applicant continuously remained under suspension and thus filed the present OA which could be disposed of in terms of the order dated 11.04.2013 with the view that since the order of suspension could not be reviewed within 90 days, the same turned invalid on expiry of 90 days from 17.10.2008, i.e. w.e.f. 14.01.2009. Considering the suspension order being revoked, this Tribunal directed for reinstatement of the applicant. For easy reference, para 6 of the order is extracted hereinbelow:-
6. It is well settled legal position that unless the suspension order is not reviewed within a period of 90 days, the suspension would automatically expire and the suspended employee has to be reinstated in service. In this regard, sub-rules (6) and (7) of Rule 10 of the CCS (CCA) Rules, 1965 which have been reproduced earlier, are quite relevant. Sub-rule (7) very clearly states that an order of suspension made or deemed to have been made under sub rules (1) or (2) of Rule 10 (ibid) shall not be valid after a period of ninety days unless it is extended after review, for a further period before the expiry of ninety days. The record in this case clearly shows that the order of suspension of the Applicant issued vide the impugned order dated 27.10.2008 has never been reviewed and the period of suspension has never been extended by any authority. In view of above position, we declare that the impugned order dated 27.10.2008 suspending the applicant with effect from 17.10.2008 has become invalid on expiry of 90 days from 17.10.2008, i.e. w.e.f. 14.01.2009. Consequently, the aforesaid suspension order is deemed to have been revoked and the Applicant is reinstated in service from the said date. We, therefore, direct the Respondents to pass appropriate order reinstating the Applicant in service with effect from 14.01.2009 with all consequential benefits. The aforesaid direction shall be complied with by the Respondents by passing appropriate orders, within a period of one month from the date of receipt of a copy of this order. The order was challenged before Honble Delhi High Court in WP (C) No. 5338/2013 and was reversed. The Honble High Court passed the order on 27.08.2013 remanding the matter back and expecting this Tribunal to decide the issue raised with reference to the facts and the law pleaded in the original application. For easy reference, the order is extracted hereinbelow:-Caveat No 738/2013
Since counsel as above appears for the respondent/caveator the caveat is discharged.CM No. 11962/2013
Allowed subject to just exceptions.W. P (C) No.5338/2013
1. We have perused OA No.3761/2013. Learned counsel for the respondent concedes to the point that the respondent had not challenged his suspension/continued suspension with reference to CCS (CCA) Rules, 1965 and in particular Rule 10 thereof.
2. From a perusal of the pleadings in the Original Application we find that the suspension/continued suspension was challenged with reference to the Standing Order No. 123.
3. For reasons unknown the Tribunal has decided the matter with reference to the CCS (CCA) Rules and in particular Sub-Rule 6 and 7 of Rule thereof.
4. Suffice would it be to state that the Tribunal has made out a case not even pleaded by the respondent.
5. Learned counsel for the respondent concedes that in view of the Division Bench judgment dated February 15, 2008 disposing of W.P (C) No. 2862/2007 UOI & Ors Vs. Sub Inspector Sanjay Sharma, CCS (CCA) Rules, 1965 are not applicable to Delhi Police personnel.
6. Accordingly, we dispose of the writ petition at the preliminary stage itself setting aside the impugned order dated April 11, 2011.
7. OA No. 3361/2012 is restored for adjudication afresh on merits.
8. It is hoped and expected that the Tribunal would decide the issue raised with reference to the facts and the law pleaded in the Original Application and not make out a case on a legal provision not relied upon.
9. At the remanded stage fresh decision would be taken within 2 months reckoned from today.
10. Parties shall appear before the Registrar of the Tribunal on August 30, 2013 who shall thereafter list the Original Application before the appropriate Bench.
11. No costs
12. DASTI CM No. 11961/2013 Dismissed as infructuous. Thus, though the Original order dated 11.04.2013 was passed by a different Bench, but since the present OA was to be disposed of within two months from the order of Honble High Court, we have considered it appropriate to dispose of the same, as the Bench which decided the OA on 11.04.2013 would be available only on 28.10.2013, i.e. after expiry of two months from 27.08.2013. It is seen that in terms of the Standing Order No. 123/2008 dated 30.11.2009, in each case where suspension has to be continued beyond a period of six months, the concerned Dy. Commissioner of Police needs to obtain prior approval of Joint/Additional Commissioner of Police for continuing the suspension and ordinarily the extension should not be granted for more than a period of three months. For easy reference, the contents of para 5 (iii) of the Standing Order are extracted hereinbelow:-
5 (iii) In each case where suspension has to be continued beyond a period of six months, the concerned Dy.Commissioner of Police shall obtain prior approval of the Joint/Addl. Commissioner of Police for continuing the suspension in such cases. Ordinarily such extension of time will not be granted for more than a further period of three months. This permission will, however, have to be obtained before the period of six months from the date of suspension period. In the presents case, since the suspension order itself was issued by the Addl. Commissioner of Police, there was no requirement of approval for continuation of suspension for a period of three months beyond six months by the said authority. Nevertheless, all the Distt/Unit DCPs are expected to scrupulously observe the time limit as per procedure laid down in para 5 (ii) of the Standing Order (ibid) and review the cases of suspension to see whether continued suspension in all cases is really necessary. The authorities superior to the disciplinary authorities are also expected to give appropriate directions to the disciplinary authorities keeping in view the provisions contained in the Standing Order. For easy reference, para 5 (ii) of the Standing Order is extracted hereinbelow:-
5 (ii) All Distt./Unit DCsP will ensure that suspension registers are sent to the Addl. CsP/Joint CsP concerned for his information in the first week of every month. The Distt./Unit DCsP must ensure that the departmental enquiries against suspended police officers and men are not allowed to linger on unnecessarily. The disciplinary proceedings against suspended Police Officer should be taken up expeditiously with a view to completing them within three months from the date of suspension. The DCsP ordering suspension must keep a Vigilant watch over the progress of each case. Each DCP should maintain a register in which the progress of each case of suspension is to be recorded. These registers should be sent to the Joint/Addl.Commissioner of Police concerned for his information in the first week of every month. All factors delaying the enquiry must be examined with care with a view to completing the proceedings within this time limit. DCP/DE Cell will sent to the Distt./Unit DCsP concerned a report on 15th of every months showing progress of departmental enquiries pending in D.E. Cell against suspended police officers/men.
Police investigation in cases in which a Police Officer is involved and has been suspended should be completed with the utmost speed and every effort must be made to complete the investigation within a period of three months from the date of suspension. However, in cases in which it may not be possible to do so, the Distt./Unit DCsP should report the matter to their Addl. CsP/Joint CsP explaining the reason for the delay.
In departmental cases, the total period of suspension, i.e. both in respect of investigation and disciplinary proceedings should not ordinarily exceed six months.
All the Distt./Unit DCsP should scrupulously observe the time limit laid down in the preceding paragraph and review the cases of suspension to see whether continued suspension in all cases is really necessary. The authorities superior to the disciplinary authorities should also give appropriate directions to the disciplinary authorities keeping in view the provisions contained above. Even in the order of Honble Delhi High Court relied upon by learned counsel for respondents, i.e. Union of India and Others Vs. Sub Inspector Sanjay Sharma (ibid), it has been specifically viewed that in the Standing Order No. 123/1989 (sic 2008), there is provision for periodical review of the suspension order and the provisions of Rules 7 and 8 of CCS (CCA) Rules ought not to have been applied to subordinate staff of Delhi Police. For easy reference, para 10 and 11 of the judgment are extracted hereinbelow:-
10. First of all, this sub-rule is part of Delhi Police (Appointment & Recruitment) Rules and specifies that in regard to matter not specifically covered by those Rules, the rules, regulations and other orders of the Government of India shall be applicable. The present matters does not relate to appointment or recruitment. It relates to a matter of discipline for which DP (PA) Rules are applicable. Moreover, the subject matter of suspension is specifically covered by Rules 26 to 29 and for this reason also Rule 26 (2) of the Delhi Police (Appointment & Recruitment) Rules will not be applicable.
11. It is not that there is no provision made by the Delhi Police regarding review of suspension. Standing order No.123 of 89 is issued which deals with suspension. It, inter alia, enumerates the circumstances under which a police officer may be suspended. There is a provision about deemed suspension as well. Para 4 of the said Standing Order relates to duration of order of suspension and para 5 deals with speedy follow up action in suspension cases and time limits are prescribed. These provisions do ensure that the suspension order is passed only in those cases where it is absolutely warranted and further that there is a periodical review of the suspension order as well. However, there is no mandate for compulsory review within 90 days of the deemed suspension and no consequence of the nature provided in sub-rule (7) of Rule 10 of the CCS (CCA) Rules is prescribed. In the circumstances, we of the view that at least beyond the period of 9 months, the concerned authorities ought to have monitored the suspension of the applicant in terms of the provisions of para 5 of the Standing Order No. 123/2008. Learned counsel for the respondents could not put forth any justification for reinstatement of as many as 51 members of subordinate staff who were kept under suspension being involved and not reinstating the applicant as yet. He could also not put forth any justification for not applying the minutes of the CP weekly crime review meeting held on 14.12.2012 to applicant. Relevant excerpts of the minutes read as under:-
17. Cases of suspended employees involved in corruption cases and drawing 75% subsistence allowance should be examined for reinstatement. All cases should be decided on merits of each case for utilizing the staff for non-sensitive duties. Mr.N.K.Singh admitted at the Bar that the representations made by the applicant for revocation of his suspension and reinstatement in service through proper channel have not yet been decided. Copies of such representations are placed on record as Annexure A1 and 2 to the Original Application. In para 4.11 of the OA, the applicant has made averments in this regard. Said para reads as under:-
4.11. That against the continuation of the suspension, the applicant submitted his representation vide dated 9.9.2010 followed by a reminder application dated 28.07.2011 but till date no reply has been received and the respondents continuously extended the suspension of the applicant, which is totally illegal, arbitrary, against the rules and against the principle of natural justice and hence this OA at this stage for the prayed relief. In para 4.11 of their reply to the OA, it is averred that the suspension of the applicant was reviewed by the competent authority but it was not considered appropriate to reinstate him. Para 4.11 of the reply reads as under:-
4.11. In reply to para 4.11 it is submitted that the applicant had submitted his representation to DCP/Security on 09.09.2010 while attached with Security Lines. However, the suspension of the applicant was reviewed by the competent authority but was not found fit for reinstatement in view of departmental enquiry pending against him. Admittedly, the applicant is under suspension for over a period of five years. Such period is a very long period. While taking decision regarding continuation of suspension of the applicant, the authority given the responsibility to monitor and review the suspension ought to have kept in mind that the criminal case registered against the applicant was based on the allegation made by son of an accused of murder. Another factor which the authorities needed to consider was that might be for want of valid prosecution sanction, the applicant was discharged from the criminal case. Nevertheless, though a reference of Standing Order 123/2008 was made by the applicant in para (J) of the OA, but the copy of the same could be produced only during the course of hearing and copies of orders dated 28.02.2013, 3.01.2013 and minutes dated 14.12.2012 are placed by him on record as enclosures to the rejoinder only. The respondents could not get an opportunity to comment upon the same in their counter reply though regarding the averment made in para (J) of the OA, respondents have stated that the disciplinary authority correctly viewed not to revoke the suspension of the applicant. Had the respondents got an opportunity to comment upon the orders dated 28.02.2013, 3.01.2013 and minutes dated 14.12.2012, we ourselves could have taken a view regarding continuance of suspension of the applicant.
4. Nevertheless, as has been noticed hereinabove, the documents being placed along with the rejoinder, respondents could not get an opportunity to comment upon the same, thus we deem it appropriate to dispose of the present OA with direction to respondents to take a decision on the representations (Annexure A-1 and 2) made by the applicant keeping in view the documents placed on record as enclosures to the rejoinder as also para 5 of Standing Order No.123/2008, the fact that the complaint made against the applicant was by relative of an accused of murder, the order of Special Judge discharging him from the charges and para 11 of the judgment of Honble Delhi High Court in Union of India and others Vs. Sub Inspector Sanjay Sharma (ibid). The decision to be taken on said representations would be communicated to applicant by way of speaking order within a period of three weeks from the date of receipt of a copy of this order. No costs.
(A.K.Bhardwaj) (Sudhir Kumar) Member (J) Member (A) sk