Central Administrative Tribunal - Delhi
Mrs. Sudha Sanwal vs The Commissioner Of Police on 16 October, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 407/2012 ORDER RESERVED ON: 19.09.2012 ORDER PRONOUNCED ON: 16.10.2012 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE MRS. MANJULIKA GAUTAM, MEMBER (A) Mrs. Sudha Sanwal, W/o late Mr. Prakash Chandra Sanwal, S/o late Sh. B.D. Sanwal, C/o House No. G-573, Sriniwaspuri, New Delhi-110065. Applicant. (By Advocate Shri M.K. Bhardwaj) Versus 1. The Commissioner of Police, Delhi Police Headquarters, I.P. Estate, New Delhi-110002. 2. Addl. Dy. Commissioner of Police, South East District, Sarita Vihar, New Delhi. 3. The Government of NCT of Delhi, Through its Chief Secretary, New Delhi. Respondents. (By Advocate Shri N.K. Singh) O R D E R
Shri G. George Paracken:
The applicant in this Original Application is the wife and legal heir of late Shri Prakash Chandra Sanwal who was a Constable in Delhi Police. He died on 30.10.2011. During his service, he was allegedly involved in a criminal case u/s 364A IPC. The Addl. District and Sessions Judge convicted him vide his judgment dated 29.07.2000. However, on appeal, the Honble High Court of Delhi, vide its order dated 10.01.2001, suspended the sentence.
2. Meanwhile, the Respondents dismissed the husband of the applicant from service vide order dated 17.08.2006. He preferred an appeal against it on 07.09.2006 stating that it was against the provisions contained in Article 311 (2) (a) of the Constitution as well as Rule 11 (1) of the Delhi Police (Punishment and Appeal) Rules, 1980 was rejected by the appellate authority vide its order dated 18.10.2006. According to the applicant, in a similar case being Writ Petition (C) No. 1044/2008 Commissioner of Police Vs. Shri Brij Pal Singh, the Division Bench of the Honble High Court of Delhi held that such dismissal from service is violative of Rule 11 of the Delhi Police (Punishment and Appeal) Rules, 1980 and quashed the impugned order of dismissal (Annexure A-12). In the said case, the High Court considered the issue whether, notwithstanding the proviso to Rule 11 (1) of the Delhi Police (Punishment and 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 relevant portion of the order of the Honble High Court in the aforesaid Writ Petition is as under:
20. 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.
21. We may note that the Petitioner is not entirely helpless as is sought to be projected by the learned Additional Solicitor General. There is a gap period between the date of the sentence and the filing of the first appeal. While we do not express any opinion in this regard, it may be possible for the Petitioner (in an appropriate case) to use this gap period to pass an order of dismissal or removal from service by exercising powers under Clause (a) of the second proviso to Article 311 (2) of the Constitution. But, if this gap period is not made use of by the Petitioner then, it will have to await the decision of the first appeal filed by the convicted police officer by the appellate court. An escape valve has been provided by the statute, but we do not express any opinion at all about its utility, since that question does not arise for our consideration.
22. To sum up, on a plain reading of the proviso to Rule 11 (1) of the Rules, we find no error having been committed by the Tribunal in taking the view that it did.
23. We find the impugned order to be perfectly justified. We accordingly dismiss the writ petition and all other connected writ petitions. Each Respondent will be entitled to cost of Rs.1,000/-.
3. Later on, during the pendency of the appeal before the Honble High Court, the applicants husband died and his widow (applicant herein) contested the appeal as a legal representative. The High Court vide its judgment dated 23.02.2012 allowed the appeal and set aside the conviction.
4. The respondents have filed their reply taking the preliminary objection that the present application is hit by delay and laches because the applicant is challenging the order of disciplinary authority passed on 17.08.2006 which is six years prior to the filing of the O.A. In this regard, they have relied upon the judgments of the Honble Apex Court in Union of India Vs. M.K. Sarkar (2010 (2) SCC 59), D.C.S. Negi and Ors. Vs. Union of India (SLP (Civil) No. 7956/2011) and Surendra Nath Pandey and Ors. Vs. Uttar Pradesh Cooperative Bank Limited and Anr. (2010 (12) SCC 400).
5. On merit, they have stated that on having been involved/arrested in case FIR No. 45/95 u/s 363/364/364A/342/506/34 IPC, PS Sriniwaspuri, Delhi, the applicants husband Shri Prakash Chandra remained in judicial custody for 193 days and, therefore, he has been placed under suspension w.e.f. 23.01.1995 vide order dated 05.05.2000 read with corrigendum dated 12.12.2000. Later on, the Additional Sessions Judge, New Delhi vide her judgment dated 29.07.2000 in the aforesaid case convicted him and awarded sentence of life imprisonment u/s 364-A IPC and a fine of Rs.10,000/-. He had filed an appeal against the aforesaid order and it was admitted in the Honble High Court. Therefore, the disciplinary authority, under clause (a) of second proviso to Article 311 of the Constitution of India dismissed him from service w.e.f. 17.08.2006 and held that the period of suspension from 23.01.1995 to the date of dismissal will not be treated as period spent on duty. They have also stated that he had filed an appeal against the order of dismissal from service but the same was also rejected vide order dated 18.10.2006.
6. We have heard the learned counsel for the applicant Shri M.K. Bhardwaj and the learned counsel for the respondents Shri N.K. Singh. In the facts and circumstances of the case, we are convinced that this case is fully covered by the judgment of the High Court of Delhi in the case of Shri Brij Pal Singh (supra). Therefore, the order of dismissal from service of the applicants husband is quashed and set aside. Consequently, the respondents shall reinstate him in service from the date of his dismissal from service and grant him all consequential benefits. The respondents shall also pass appropriate orders in this regard within a period of two months from the date of receipt of a copy of this order. There shall be no order as to costs.
(MRS. MANJULIKA GAUTAM) (G. GEROGE PARACKEN)
MEMBER (A) MEMBER (J)
`SRD