Central Administrative Tribunal - Delhi
Sher Singh vs Govt. Of India Of Delhi on 8 April, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, NEW DELHI O.A. No.3898/2010 New Delhi, this the 8th day of April, 2011. HONBLE MRS. MEERA CHHIBBER, MEMBER (J) HONBLE DR. A.K. MISHRA, MEMBER (A) Sher Singh, S/o Shri Tej Singh, Ex. Sub Inspector No.D/1175, R/o 405, Santosh Apartments, Plot No. 39B, Sector 6, Dwarka, New Delhi-110075. .. Applicant (Applicant appeared in person) Versus Govt. of India of Delhi, Through Lt. Governor of Delhi, Raj Niwas, Delhi. 2. Commissioner of Police, Police Headquarters, I.P. Estate, New Delhi. 3. Special Commissioner of Police, Armed Police, Police Headquarters, I.P. Estate, New Delhi. 4. Additional Commissioner of Police, Armed Police, New Police Lines, Kingsway Camp, New Delhi. 5. Deputy Commissioner of Police, VII Bn. DAP, Malviya Nagar Lines, New Delhi. .. Respondents (By Advocate : Shri B.N.P. Pathak) ORDER (ORAL)
Mrs. Meera Chhibber, Member (J) Applicant has challenged order dated 10.10.2008 whereby he has been dismissed from service in view of his conviction in the criminal case and order dated 1.12.2009 whereby his appeal has been rejected. He has further sought a direction to the respondents to reinstate him in service with all consequential benefits.
2. It is submitted by the applicant that he was convicted under Section 304 IPC in the year 2004 in a criminal case. In view of above, he was suspended on 6.1.2004. The order of conviction was challenged by the applicant in the Honble High Court of Delhi in which appeal was admitted and his sentence was suspended. The appeal is still pending which is evident from order dated 8.3.2004 (page 112). However, the respondents issued a circular in the year 2005 which was contrary to Rule 11(1) of Delhi Police (Punishment and Appeal) Rules, 1980. On the basis of the said circular, even though his appeal is still pending in the Honble High Court of Delhi, applicant was dismissed from service vide order dated 10.10.2008 (page 39) and his appeal was also rejected vide order dated 1.12.2009 (page 43). Being aggrieved, he had given a representation to the Commissioner of Police, which too was dismissed on the ground that Rule 25 of Delhi Police (Punishment and Appeal Amendment) Rules, 1994 had been held to be ultra vires and, therefore, revision was not maintainable (page 47)
3. It is submitted by the applicant that his case is fully covered by the judgment given by this Tribunal dated 12.3.2010 in OA No. 2919/2009 (page 164), order dated 26.5.2010 in OA No. 3731/209 and judgment dated 4.12.2008 given by Honble High Court of Delhi in Writ Petition (Civil) No.1044 of 2008 and connected matters. He has thus prayed that the OA may be allowed.
4. Respondents have opposed this OA. They have stated that in the year 1991 applicant was posted at PS Lahori Gate. On the night intervening Ist/2nd March, 1991 Constable Anil Kumar illegally brought three persons, namely, S/Shri Jagan Nath, Ram Parsad and Dharam Pal to PS Lahori Gate where they were detained illegally in the investigation room shared by the applicant and ASI Suresh Chand. Shri Jagan Nath was given beatings by Constable Anil Kumar and tortured by the other police officials of PS Lahori Gate. As a result of torture and beatings given to Shri Jagan Nath, he sustained serious injuries, whereupon he was admitted in St. Stephenss Hospital without disclosing the facts to the senior officers. Shri Jagan Nath later succumbed to the injuries inflicted upon his body during police custody. Accordingly, case under Section 304/330/348/34 IPC PS Lahori Gate was registered against the applicant and other police officials of PS Lahori Gate including the applicant. In view of above, applicant was placed under suspension with effect from 5.1.2004 vide order dated 9.1.2004. The applicant along with Inspector Shri R.S. Dahiya and Manohar Lal were convicted under Section 304 IPC and all the three accused were sentenced to 5 years rigorous imprisonment and fine of Rs.50,000/- each out of which Rs.5000/- was to be paid to the State and balance of Rs.45,000/- to the kins of the deceased. In default of payment of fine, each accused was ordered to undergo rigorous imprisonment for a further period of 9 months. Constable Anil Kumar was convicted under Section 302 IPC and was sentenced to life imprisonment. In view of above, applicant was dismissed from service by invoking Article 311 (2)(a).
5. They have placed reliance on the Honble Supreme Courts judgment in the case of Deputy Director of Collegiate Education (Administration), Madras Vs. S. Nagoor Meera reported in 1995 (3) SCC page 377 to state that in spite of Section 11 (1) of Delhi Police (Punishment & Appeal) Rules, 1980, they could still have dismissed the applicant. Moreover, in Brij Pal Singh Vs. State (CWP No.1044/2008) Honble High Court had observed that disciplinary authority should follow uniformity while applying Article 311 (2)(a) where a person is convicted in a criminal case. In the instant case, only sentence was suspended by the Honble High Court in criminal appeal, the conviction still remained, therefore, applicant was rightly dismissed from service by invoking Article 311 (2)(a) of the Constitution. They have thus prayed that the OA may be dismissed.
6. We have heard applicant, who appeared in person and counsel for the respondents and perused the pleadings as well.
7. Admittedly, applicant along with three other persons including Constable Anil Kumar were tried in a criminal case for allegedly giving beatings to the individual Shri Jagan Nath who was brought in the PS Lahori Gate. The applicant along with other persons were convicted for the offence under Section 304 Part-II IPC and sentenced to imprisonment for 5 years in addition to fine of Rs.50,000/-, whereas Anil Kumar (Constable) was convicted under Section 302 of the Constitution. They challenged their conviction and sentence before the Honble High Court. Their appeal was admitted and sentence was suspended. Applicant was also admitted to bail pending disposal of the appeal on his furnishing personal bond for Rs.25,000/- with one surety in the like amount to the satisfaction of the learned Trial Court by order dated 8.3.2004 (page 112). It is thus clear that the appeal of applicant was and is stated to be still pending in the Honble High Court of Delhi.
8. Respondents dismissed the applicant vide order dated 10.10.2008 on the basis of his conviction by invoking Article 311 (2)(a) of the Constitution by referring to the judgment of Honble Supreme Court in the case of S. Nagoor Meera (supra).
9. The question before us is whether such kind of dismissal is sustainable in law or not. The question need not detain us for long because it has already been discussed at length and decided in batch of matters in the case of Brij Pal Singh Vs. Govt. of NCT and Other connected matters (OA Nos. 546/2006 with other connected OAs) wherein circular dated 9.12.2005 issued by Delhi Police was quashed and set aside and it was held since there is a specific provision Rule 11 (1) in Delhi Police (Punishment & Appeal) Rules, 1980 which reads as under:-
11. Punishment on judicial conviction.- (1) When a report is received from an official source, e.g. a court or the prosecution agency, that a subordinate rank has been convicted in a criminal court of an offence, involving moral turpitude or on charge of disorderly conduct in a state of drunkenness or in any criminal case, the disciplinary authority shall consider the nature and gravity of the offence and if in its opinion that the offence is such as would render further retention of the convicted police officer in service, prima facie undesirable, it may forthwith make an order dismissing or removing him from service without calling upon him to show cause against the proposed action provided that no such order shall be passed till such time the result of the first appeal that may have been filed by such police officer is known. therefore, even if a person is convicted in a criminal court, the police officers could not have been dismissed from service in case the criminal appeal against conviction is still pending in the Honble High Court. It was also held by the Tribunal that the decision rendered by the Honble Supreme court was not at all applicable to the facts of the case because in that judgment there was no statutory bar like Rule 11 (1) of Delhi Police (Punishment & Appeal) Rules, 1980, therefore, all the applicants before it would be deemed as continuing under suspension throughout excluding those applicants who were undergoing imprisonment. Thus the OAs were allowed.
10. The above said judgment was challenged by the respondents before Honble High Court of Delhi by filing Writ Petition No. 1044/2008 wherein the specific issue considered was whether notwithstanding the proviso to Rule 11 (1) of the Delhi Police (Punishment & Appeal) Rules, 1980, a police officer can be dismissed or removed from service during the pendency of a first appeal against an order of conviction and sentence. The Honble High Court referred to the Circular dated 9.12.2005 as also the judgment of Honble Supreme Court in the case of Deputy Director of Collegiate Education (Administration), Madras Vs. S. Nagoor Meera (supra) and observed as follows:-
It is significant to note that the above circular correctly appreciates the decision rendered by the Supreme Court. However, it completely overlooks the proviso to Rule 11(1) of the Rules which specifically states that an order dismissing or removing a police officer from service, as a result of his conviction, shall not be passed till such time the result of the first appeal that may have been filed by such police officer is known. This is where lies the nub of the controversy.
On a plain reading of the proviso to Rule 11(1) of the Rules, it is quite clear that it puts a fetter, for the benefit of a convicted police officer, on the exercise of the constitutional power of dismissal or removal without an inquiry. However, the restriction is limited to a situation where a first appeal is filed by the police officer against his conviction and sentence. In such an event, a reasonable restriction is statutorily placed upon the exercise of its constitutional power by the Petitioner to dismiss or remove without an inquiry. Consequently, the Petitioner will have to await the result of the first appeal. On a plain reading of the proviso, we see no reason to deny to a convicted police officer the full amplitude of the benefit statutorily conferred upon him because Clearly, the proviso to Rule 11(1) of the Rules carves out an exception to the main section, which permits the summary dismissal or removal of a convicted police officer. The portion carved out is for the benefit of the convicted police officer, and however much learned Additional Solicitor General may protest and complain about it, we have to give the proviso its plain meaning and full play, as long as it exists on the statute book .
11. It was further observed as follows:-
The decision of the Supreme Court in S. Nagoor Meera does not change the legal position at all, at least in so far as the Delhi Police (Punishment and Appeal) Rules, 1980 are concerned. That decision was rendered by the Supreme Court while interpreting the Tamil Nadu Civil Services (Classification, Control and Appeal) Rules. There is nothing in the decision of the Supreme Court to suggest, nor has anything been pointed out to us, that a beneficial proviso such as one contained in Rule 11(1) of the Delhi Police (Punishment and Appeal) Rules, 1980 even exists or was even considered. There is, therefore, a world of difference between the Rules dealt with by the Supreme Court and the Rules that we are concerned with. In the face of the proviso to Rule 11(1) of the Rules, it is not possible to say that pending the result of the first appeal means that the Petitioner can remove or dismiss a police officer, at any time even while the first appeal against the conviction and sentence is pending.
12. After holding that Rule 11 (1) of Delhi Police (Punishment & Appeal) Rules, 1980, has to prevail, the question posed by the respondent herein as to what is the petitioner expected to do until the decision is rendered in the first appeal, was answered by the Honble High Court as follows:-
In our opinion, the Petitioner is at liberty to take either of the three steps: (i) take back the police officer in service (which is wholly unlikely and purely hypothetical); (ii) it can treat the police officer as being under suspension, which was his status during the pendency of the criminal trial; or (iii) it can initiate departmental action against the convicted police officer under Rule 11(3) of the Rules. The Tribunal has directed the Petitioner to exercise the second option, namely, to treat all the convicted police officers as being under suspension other than those who are actually undergoing imprisonment. We are of the opinion that this direction is perfectly reasonable and continues the status quo that existed during the pendency of the criminal trial. Of course, this cannot and does not prohibit the Petitioner from simultaneously initiating departmental action under Rule 11(3) of the Rules.
There are, therefore, two viable options that the Petitioner may resort to and it is not as if dismissal or removal of the convicted police officer is the only remedy that is available to the Petitioner, more particularly in the face of the proviso to Rule 11(1) of the Rules.
13. The Writ Petition was accordingly dismissed with cost of Rs.1000/- to be paid to each of the respondents. It is thus clear that the issue in this case is no longer res integra. Moreover, the co-delinquent of applicant, namely, Constable Anil Kumar, who was, in fact, alleged to have brought Jagan Nath in the PS and given beatings was also dismissed. He had challenged his order of dismissal by filing OA No.1692/2007 which was allowed vide order dated 23.12.2008. In fact, it would be purposeful to quote the order dated 26.2.2009 which was passed by the respondents after his OA was allowed:-
In pursuance of the judgment dated 23.12.2008 passed by the Honble Central Administrative Tribunal in O.A. No.1692/2007, MA No.2077/2008 - Ex. Const. Anil Kumar, No.2107/PCR Vs. GNCT of Delhi as well as in pursuance of PHQs endst. No. 1138/CR-I/PHQ dated 12.2.2009, conveyed vide memo. No.1177-1214/P. Cell/Vig./P-III dated 19.2.2009, the order of the Disciplinary Authority imposing the punishment of dismissal under Article-311 (2) (a) of the Constitution of India vide order No.15978-16077/HAP(P-IV)/PCR dated 24.11.2006 and order of the Appellate Authority rejecting his appeal against the punishment of dismissal vide order No.219-20/I/C Appeals/Addl.C.P./P&C dated 28.3.2007 are hereby quashed and set aside. Ex. Const. Anil Kumar, No.2107/PCR (PIS No.28881094) is hereby reinstated in service from dismissal with immediate effect subject to the final outcome of 1st appeal against the conviction in the Honble High Court, Delhi. His suspension period from 7.12.1991 to 2.5.1993 will be decided later on. However, he will be deemed to be under suspension from the date of dismissal i.e. 24.11.2006.
Let the Constable be informed accordingly.
14. We have already noted above that Constable Anil Kumar was the person who is alleged to have brought Jagan Nath in PS and given beatings to him. If his order of dismissal has been set aside and he has been reinstated and put under deemed suspension, applicant is entitled to the same benefit.
15. In view of above, the impugned orders dated 10.10.2008 and 1.12.2009 are quashed and set aside. Respondents are directed to reinstate the applicant in service with immediate effect and put him under deemed suspension as has been done in the case of Constable Anil Kumar. No costs.
(Dr. A.K. Mishra) (Mrs. Meera Chhibber) Member (A) Member (J) Rakesh