Central Administrative Tribunal - Delhi
Hc Ramesh Kumar vs Union Of India on 25 February, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A 2470/2006 New Delhi, this the 25th day of February, 2010 Honble Mr. Justice V.K. Bali, Chairman Honble Mr. Justice M. Ramachandran, Vice Chairman (J) Honble Mr. L.K. Joshi, Vice Chairman (A) Honble Mr. Shanker Raju, Member (J) Honble Dr. Ramesh Chandra Panda, Member (A) HC Ramesh Kumar, (513/SD, PIS No.28800438), S/o Sh. Chattar Singh, R/o Vill Garhi (Sampla), PO Sampla, Distt. Rohtak, Haryana. Applicant. (By Advocate Shri Saurabh Ahuja) Versus 1. Union of India, through Secretary, Ministry of Home Affairs, North Block, New Delhi. 2. Commissioner of Police, Police Head Quarters, IP Estate, MSO Building, New Delhi. 3. Deputy Commissioner of Police, South District, R.K. Puram, New Delhi. 4. Joint Commissioner of Police, Southern Range, Police Head Quarters, IP Estate, MSO Building, New Delhi. 5. Deputy Commissioner of Police, 6th Battalion DAP, Police Head Quarters, IP Estate, MSO Building, New Delhi. Respondents. (By Advocate Mrs. Renu George) O R D E R
M. Ramachandran, Vice Chairman (J).
The validity of order dated 24.12.2005 dismissing the applicant from Delhi Police is under challenge. He also challenges Annexure A-1 by which the 3rd respondent had initiated the disciplinary proceedings. The appellate authority had confirmed the order. Applicant was a Head Constable in the Delhi Police, who, at the relevant time, had put in over 20 years of service. A specific ground about the jurisdictional power of the officer while initiating the proceedings had been raised in the O.A. Mr. Ahuja, learned counsel for the applicant, has submitted that want of jurisdictional authority of the third respondent in initiating the disciplinary proceedings is the corner stone of the application. According to him, in case Tribunal agrees with his contention that proceedings have been initiated without sufficient statutory authority, action being ab initio void all the orders automatically become invalid. Since Mr. Ahuja had not addressed us, in respect of other aspects highlighted in the OA, we are confining ourselves to the jurisdictional competence of the officer concerned in initiating disciplinary action, and whether there was any infraction of Rule 14 (4) of the Delhi Police (Punishment and Appeal) Rules.
2. A Bench had heard the OA and had noted the contention of the applicant that the issue as above had been finally resolved by a Full Bench decision in OA 125/2005 on 22.09.2006 in his favour. We may advert to the essential facts before directly going to the issue in dispute.
3. The applicant while posted as Head Constable at Ambedkar Nagar police station, had been transferred to 6th Bn. DAP vide PHQs order dated 10.09.2002. He had been rather reluctant to leave, but ultimately had been relieved on 06.11.2002 with direction to join 6th Bn. DAP. At the time of his relief, he had been granted five days casual leave and nine days joining time.
4. According to applicant, he fell sick immediately after the relief. As a patient suffering from anxiety neurosis/depression he had been thereafter receiving treatment from recognized hospitals. Admitted position is that he had not joined the 6th Bn. DAP on 21.11.2002 or ever thereafter. It is claimed that he had specifically informed his disability to join duty, but ignoring his predicament promptly departmental proceedings were initiated at the instance of the 3rd respondent. Reference is made to the order of the Addl. Dy. Commissioner of Police, South District dated 05.04.2004, a copy of which is Annexure A-1. This order, according to him, has come from a person who was not competent enough to issue it.
5. The later order indicates that two absentee notices had been served on the applicant on 07.05.2003 and 14.06.2003 requiring him to join duty. One of the notices was returned undelivered. Communications sent thereafter also were returned. A constable had been deputed for informing him about the disciplinary proceedings being contemplated. The report received was that the applicant had been coming to Delhi daily. But his relatives were unaware that he was not attending to his duties. This was the background in which the Addl. Deputy Commissioner of Police came up with his decision for holding a departmental inquiry.
6. Ex parte proceedings were held against him as applicant had disassociated himself from participating in the proceedings. Final orders have been passed on 24.12.2005 removing him from service (Annexure A-3). The appellate authority had rejected the appeal. This has resulted in the O.A.
7. According to the counsel for applicant, the 3rd respondent had become functus officio after 6.11.2002, so far as the case was concerned. Institution of proceedings by him were incompetent. It was claimed that in Kumar Pal Vs. Govt. of NCT of Delhi & Ors, decided on 04.01.2001 ( OA 2671/1999 ) a Division Bench had held that initiation of disciplinary proceedings in violation of Rule 14 (4) of the Delhi Police (Punishment and Appeal) Rules would be invalid and inoperative. Parity is claimed with the circumstances. We may advert to Rule 14 (4) of the Rules so as to see whether there was repugnancy in the 3rd respondent initiating the proceedings. It reads as following:
The disciplinary action shall be initiated by the competent authority under whose disciplinary control the police officer concerned is working at the time it is decided to initiate disciplinary action.
8. The contention in short was that when the applicant had been transferred to 6th Bn. DAP and as a matter of fact, he had been relieved from the control of the Deputy Commissioner of Police (South), the said respondent had no more jurisdiction to initiate proceedings against him. The expression `is working was significant; it could not have been by any stretch of imagination contended that the applicant was a person working under the 3rd respondent, and the clear wording of the Rule requires full obedience. Overlooking such an objection would lead to a situation where the Tribunal would be engaged in an act of law making. Since the issue had been specifically gone into by a Full Bench in OA 125/2005, finality as given requires to be maintained. It is submitted that the issue specifically formulated for the decision by the earlier Full Bench was as following:
Which authority would be competent under the Delhi Police (Punishment and Appeal) Rules, 1980, to initiate disciplinary action against a police officer who has been transferred and relieved from a post/station but has not joined on the new post/station, and disciplinary action has to be initiated during this interregnum period? The Full Bench had agreed with the decision in Kumar Pals case (cited supra). It had been held:
Therefore, the question referred to this Full Bench is answered as under:
In the result, we agree with the view taken by the Division Bench of this Tribunal in Kumar Pals case.
9. Counsel points out that the operative portion of Kumar Pal read as following:
In view of the above discussion we hold that in the instant case the provision of Rule 14 (4) have been violated by the respondents. The applicant was working under the disciplinary control of DCP/Security and who could have alone initiated the disciplinary action against the applicant. Mere working of a police officer would not be judged from the disbursement of salary, grant of leave and it would be directly related to actual work performed by him. In the instant case the applicant was performing his duties as Security Lines under the disciplinary control of DCP/Security. The arguments as above verbatim had been presented before the Division Bench, earlier, it is evident. The Bench recorded their inability to agree with the conclusion arrived at by the Full Bench and had recommended that the matter be heard by a larger Bench. Three questions had been framed in the reference order dated 11.08.2008 extracted hereinbelow:
In the matter of a subordinate cadre of the Delhi Police, is it mandatory that the officer within whose jurisdiction the concerned person works alone is competent to initiate the disciplinary action, irrespective of the date on which cause of action for initiating proceedings arose;
Where, as in the present case, a person has not joined duty consequent to an order of transfer, whether the officer, who issued the order, could have exercised disciplinary powers, with competence;
Does Rule 14 (4) of the Discipline and Appeal Rules results in a position, watering down the provisions of the Delhi Police Act in the matter of nomination of disciplinary authority, and if so whether it requires obedience.
The Full Bench had posted the application for final hearing but after hearing the parties had come to notice that in case a contrary view was required to be taken, a Larger Bench will have to address itself on the issue. Thereupon an order was passed in the following terms on 16.09.2009:
We find that while considering OA No. 125/2005, the Full Bench had framed the question in the following terms:-
Which authority would be competent under the Delhi Police (Punishment and Appeal) Rules, 1980, to initiate disciplinary action against a police officer who has been transferred and relieved from a post/station but has not joined on the new post/station, and disciplinary action has to be initiated during this interregnum period? The Bench had held that notwithstanding that the person had not joined the new post, the authority who issued the order of transfer had no more jurisdiction to initiate disciplinary action against him. However, we are of the opinion that the issue as such had not been fully gone into, as the decision rests on an earlier Division Bench Judgment, the facts of which were dissimilar.
The issue requires further examination, we feel. The matter would therefore stand referred to a Larger Bench. The matter was heard thereafter by the Larger Bench.
10. We may at the outset indicate that we are not inclined to accept the view expressed by the Full Bench rendered on 22.09.2006 in OA 125/2005 and would record our reasons as hereinbelow.
11. The essential difference which appears to have been overlooked, we notice, was that in Kumar Pal, the facts were dissimilar as the findings of the Division Bench would indicate. In fact, Kumar Pal, the applicant there had joined duty in the transferred station, although with some amount of reluctance. Taking notice of the rule position viz Rule 14 (4), therefore, it should have been possible to hold that the officer who had issued the transfer order, might have become functus officio and the right and jurisdiction referred to in Rule 14 (4), therefore, was to be considered as exclusive to the officer to whose jurisdiction Kumar Pal stood transferred. This, in our opinion, made all the difference. The Full Bench, therefore, we feel, had not applied itself to the facts, in spite of the specific point formulated for the decision.
12. A further development also cannot be overlooked now. We find that the decision in Kumar Pal had been reversed by the High Court of Delhi in Commissioner of Police & Ors. Vs. Kumar Pal & Anr. (WP(C) 6224/2001), decided on 05.11.2009. The High Court had arrived at the said decision taking notice of the material supplied viz that factually in respect of the Constables of the 9th Bn. of the Delhi Armed Police, even in a case where they are sent over to security units by virtue of specific orders, the administrative and disciplinary control over the officers continued to vest with the DCP of the DAP Bn. Only operational and functional control was to vest in the DCP (Security). Therefore, presumably arguments under Rule 14 (4) were irrelevant. Being an overruled decision, Kumar Pal, therefore, could not have been an authority of binding effect, and as of now cannot be considered as a decision laying down any legal principle to be followed or entitled to automatic acceptance. We also find that practically there is no independent discussion made by the Full Bench about the scope of Rule 14 (4) of the Rules vis-`-vis the issue.
13. The earlier Full Bench had referred to some correspondence entered into by Delhi Administration on the subject. It is pertinent that while deciding WP (C) 6224/2001, the letter as above had been brought to the specific attention of the High Court, and the High Court had observed that advertence to the above may not at all be relevant. The Deputy Commissioner of Police on 06.02.1989 had requested the Government to amend Rule 14 (4) of the Rules as it was likely to place impediment for smooth transaction. But the Government had returned the files by observing that the position as settled was that the transferee authority was to take action in such cases and the rules, therefore, do not require any amendment. The letter has been extracted in the Full Bench decision in OA 125/2009 as following:
On a careful consideration of the matter it appears to us that the instant proposal to amend rule 14 (4) of the Delhi Police (Punishment and Appeal) Rules, 1980 is contrary to law. It is well settled by the pronouncements of various courts that in cases where an employee has been transferred from the disciplinary control of the authority to that of another, it would be the transferee authority who would take action and not the authority under whose disciplinary control the employee was working. In short, it is the competent authority under whose disciplinary control the employee has been transferred alone would be entitled to take action and the authority from whose disciplinary control he has gone away will have nothing to do with him any longer in future. So, the amendments as sought by the PHQ are not warranted. On account of this position the draft notification added by the Police Department has not been vetted. Additionally, it is clear that the exchange of views were evidently in respect of normal transfers, and not at all dealing with an issue which has now come to our consideration.
14. We are to examine here a case where a person had been transferred from one place to another Division but who had failed to join duty in the transferred post. And the officer who had issued the transfer order had thought it fit to issue disciplinary proceedings himself. We may examine whether this proceeding offended the procedure that had been prescribed by Rule 14 (4).
15. While interpreting provisions of a statute, the first principle would be that the plain meaning of the prescription has to be taken notice of. Only if there is ambiguity or if the statute cannot be meaningfully understood, external help require to be solicited. It is also well settled that in the process of law making, it may not be possible for the authorities to take notice or advert to all possible contingencies that may arise in future. The duty of the court is to energize the law, by transposing itself to the seat of the law maker and thereafter to apply its mind and ponder as to what would have been in the contemplation of the authority, in case situation at hand was to emerge, and how best to deal with it. Definitely we are not to be understood as suggesting that generally the court has power to supplant provisions. The dictionary meaning of the word `interpretation itself is explained as the effort to ascertain the intention of the executants of a document (See Aiyers Judicial Dictionary, 11th Edition). Rightly it has been explained that words of a statute take their meaning from the context in which they are used.
16. In the above foreground, when we examine Rule 14 (4), it emerges that hardly any ambiguity can possibly be found. The applicant, we feel, could have pressed the argument, casting doubt about the jurisdictional authority of the 3rd respondent in issuing the impugned order only if he was able to show that after his relief, he had been in fact working under the transferee office. Such a case he has not; the admitted situation is that he had failed to report to 6th Bn. DAP. So this was definitely not a case where the applicant is or was working in the transferee office, and he thus is automatically disentitled to the benefit, if at all, it might have been there by the application of the rule. If we accept the applicants contention, it may lead to absurd situations even. When he contends that the DCP (South) has no jurisdiction to proceed against him, and it is accepted, in due course, he is most likely to take a stance that officers of the 6th Bn. definitely are not in a position to initiate action against him since he had not been working under that office. It could also be contended that going strictly by Rules, nobody could have, therefore, disciplinary control over him. Ultimately, the logical end of the argument would be that in spite of the lapses that might be there, per se, he always would be sheathed with protection, all round, and will be immune from the inconvenience of disciplinary proceedings. We have to understand the rule as dealing with the situations that might be available day to day. The contingency that has arisen here is abnormal because of the reason that the applicant had not joined any post after being relieved.
17. On transfer, further follow up formalities are required to be gone into as per the governing service rules. He may be entitled to draw his pay only after getting the last pay certificate issued by the relieving office which has to be presented at the office that he is directed to join. Only on the basis of such certificates, person may be entitled to start drawing salary of the post which he occupies. It is an inter office communication to be issued when a joining report is recorded. Mr. Ahuja had contended that an officer so long as he is in service of the Delhi Police is presumed to be in service all the twenty four hours and in spite of his not joining the 6th Bn. it is a case where his lien continues to be operative. It may be partially true. But nothing turns round on that. We may be justified in holding that the lien although may continue, so long as he had not reported for duty in the transferee post, his lien could not have been in the 6th Bn. since the formalities to be completed were not carried out in full.
18. In the circumstances, the rule has to be interpreted, according to us, to mean that despite that a person is transferred and relieved, as long as he has not joined the transferred post, there was nothing disabling the original authority to take cognizance of the attendant circumstances, including right to take note of the conduct of the person.
19. We may further illustrate the point by noticing the possible flow of events. When a person is relieved with direction to join a new post, and when there is flagrant violation of that order, it cannot be denied that power is inherent to the authority who issued the transfer order to take measures and enquire why his order stands disobeyed. It cannot be considered that he is helpless because of any intervening circumstances the right is inherent in his office. When a satisfactory explanation is not forthcoming, it could have been possible for such authority to initiate and complete the disciplinary proceedings. It cannot be a pure and simple issue of desertion or unauthorized absence. The conduct of not obeying the transfer orders to go and join duty at the designated station which has to be viewed with concern, also is sufficient cause of action for appropriate proceedings.
20. The impugned order specifically refers to an instance where the dereliction could be spelled out when the Head Constable had not joined duty in the transferred post. We may extract herein a few sentences as arising in Paragraph 4 of the order:
In the meantime, Head Constable was transferred to the 6th Bn. DAP vide PHQs order No. 245333-70/P. Branch dated 10/09/2002 and he was relieved vide DD no.37-II dated 06.01.2002 PS Ambedkar Nagar, with a direction to report at the 6th Bn. DAP but the Constable did not report there despite directions. Thus, he was marked absent with effect from 06.11.2002. Thus, we find that a proper interpretation of the Rule would lead to a situation that the Rule does not bind the hands of the transferring authority to initiate action against the erring employee.
21. Mr. Ahuja had pressed into service FR 13 in this context. It is true that a Government servant, who has acquired lien on a post retains the lien on the post, while performing the duties of the post, while on foreign service, during joining time on transfer to another post (unless it is a case of transfer along with his title to a post of lower pay); while on leave and while on suspension. Taking for granted that the lien of the applicant had not been terminated during the period concerned, still his position would be precarious. Admittedly, he was not on leave. Nor was there suspension. The proviso to the rule speaks that no lien shall be retained by an officer in foreign service, if deputation beyond the maximum period admissible under the orders of the Government might be there. Since the applicant had exceeded the limits of time set for joining duty, it may have been a case sufficient enough to treat that his lien had been forfeited. Sub-clause (c) of FR 13 only provides to the extent that during joining time on transfer a person holds the lien. But that does not automatically mean that the lien is protected in the transferred post when he did not join at all. Again, the joining time referred to in sub-clause can be considered as being confined to the period which is legally admissible to an officer. It may be a debatable question whether after remaining away for a considerable period without joining, a persons lien continues to be there for him to walk in as of right. We are not going to these aspects since a decision may not be palatable to the cause of the applicant. This is because we have come to a conclusion that the restrictions as attached to rule 14 (4) as contended in the case at hand are without justifiable merit.
22. We, therefore, formally hold that the applicant may not be justified in contending that initiation of disciplinary action against him by the Deputy Commissioner of Police was without lawful authority. We hold that in respect of an officer of Delhi Police, who is transferred but has failed to join duty in the transferred post, the transferee authority will continue to have jurisdiction to proceed against him, in respect of his conduct as per his discretion. Rule 14 (4) does not bar the jurisdictional powers of the transferee authority to deal with the officer concerned in such circumstances. We further hold that the opinion to the contrary, expressed in OA 125/2005, is not good law.
23. We remit the matter to be heard by the appropriate Division Bench for rendering a decision on the OA considering the other aspects applicant has highlighted and reliefs solicited.
24. The Registry is directed to post the case during early March, 2010 before a Division Bench.
(L.K. Joshi) (M. Ramachandran) (V.K. Bali)
Vice Chairman (A) Vice Chairman (J) Chairman
(Ramesh Chandra Panda) (Shanker Raju)
Member (A) Member (J)
`SRD