Central Administrative Tribunal - Delhi
Oa3466/2009 vs Delhi Police Through on 2 December, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA3466/2009, OA3469/2009 and OA3470/2009 New Delhi this the 2nd day of December, 2009 Honble Mr. Justice M. Ramachandran, Vice Chairman (J) Honble Mr. Shailendra Pandey, Member (A) 1. OA3466/2009 Ex.SI Shanti Lal, S/o Shri Bakhi Ram, RZ J 42/209, J Block, Gali No. 3, Seemapuri, Delhi. Applicant. (By Advocate Shri R.K. Chaudhary) Versus 1. Delhi Police through Commissioner of Delhi Police, Headquarter, ITO, New Delhi. 2. Spl. Commissioner of Police, Armed Police Delhi, Police Headquarter, 2nd Floor, ITO, New Delhi. 3. Deputy Commissioner of Police, III Bn. DAP Delhi, DAP Vikaspuri Police Line, New Delhi-110018. Respondents. (By Advocate Shri Aditya Chhibber proxy for Mrs. Jyoti Singh) 2. OA3469/2009 Mahippal Singh, S/o Devi Singh, vill. Mazari, P.O. Gubhana, Tehsil Bahadurgarh, Dist. Jhajjar, Haryana. Applicant. (By Advocate Shri R.K. Chaudhary) Versus 1. Delhi Police through Commissioner of Delhi Police, Police Headquarter, ITO, New Delhi. 2. Spl. Commissioner of Police, Armed Police Delhi, Police Headquarter, 2nd Floor, ITO, New Delhi. 3. Deputy Commissioner of Police, III Bn. DAP Delhi, DAP Police Line, Vikaspuri, New Delhi. Respondents. (By Advocate Shri Aditya Chhibber proxy for Mrs. Jyoti Singh) 3. OA3470/2009 Sanjay Verma, S/o Sh. K.S. Verma, R/o A-1271, Sector 11, Awas Vikas Colony, Sikandra Yojana, Agra, UP. Applicant. (By Advocate Shri R.K. Chaudhary) Versus 1. Delhi Police through Commissioner of Delhi Police, Headquarter, ITO, New Delhi. 2. Add. Commissioner of Police Spl. Branch of Delhi, Police Headquarter, 2nd Floor, ITO, New Delhi. 3. Dy. Commissioner of Police Spl. Branch of Delhi, Police Bhawan, Asaf Ali Road, New Delhi. Respondents. (By Advocate Shri Aditya Chhibber proxy for Mrs. Jyoti Singh) O R D E R (ORAL)
M. Ramachandran, Vice Chairman (J) The above three cases had come up for admission. They are being disposed of by a common order, taking notice of the similarity of the cases almost in all respects. The applicants are Assistant Sub Inspector/ Sub Inspectors in the Delhi Police. All of them are similarly situated in that they stand convicted by the criminal court, for offences charged under the Prevention of Corruption Act. Appeals filed by them are pending in the Delhi High Court. Although in one of the cases (OA 3470/2009), the Commissioner of Police has proceeded on the basis that the appeal filed had been already disposed of by the Delhi High Court, on verification the above fact does not appear to be correct.
2. We had heard Mr. R.K. Chaudhary on behalf of the applicants. He submitted that an indiscretion had been committed by the respondents in coming with the impugned orders. The allegation appears to be justified. We may state reasons for our observations in the course of discussions.
3. The disciplinary authority has passed orders dismissing the applicants from service, exercising powers under Article 311 (2)(a) of the Constitution. It is stated that the period of suspension undergone by them should not be treated as period spent on duty for any purposes. The appeals filed had been rejected. While passing the order, the appellate authority had observed that on the basis of a decision rendered by the Supreme Court in Deputy Director of Collegiate Education (Administration), Madras Vs. S. Nagoor Meera (Civil Appeal No. 2992 of 1995 arising out of SLP (C) No. 684 of 1995), the conduct which had led to a conviction on a criminal charge necessarily justifies the administrative authority to straightaway proceed against the person concerned and, therefore, there is no question of holding an inquiry. The action taken by the disciplinary authority had been upheld.
4. It appears that the case pleaded by the applicants had not been taken notice of as it deserved. While working in the Delhi Police, of course, the applicants had been subjected to trial under the Prevention of Corruption Act. The applicants had been convicted by the Trial Court and they had filed criminal appeals, which are pending as of now. But, however, perhaps relying on a circular issued on 09.12.2005, the disciplinary authority has dismissed them on the basis of conviction. The appellate authority has upheld the decision by a strange reasoning that it was not a case when the applicants had been subjected to disability under the Delhi Police (Punishment and Appeal Rules). Against them the constitutional powers have been invoked and, therefore, there was no necessity to advert to the Rules. In other words, the claim is that procedural disability possibly arising out of the Rules could be ignored since what was exercised was Constitutional powers.
5. We had requested Mr. Aditya Chhibber to take notice on behalf of the respondents, as we felt that the action against the applicants was totally unsustainable and they required to be given the benefit of the rules at the earliest point of time. Mr. Chhibber submits that the applicants probably might be justified in contending that the issue might have already been covered by a decision of this Tribunal which had been upheld by the Delhi High Court in Writ Petition No. 1044/2008 as early as in December, 2008. But without instructions he might not be in a position to state as to how its presence was overlooked. But we feel consistency requires that we follow earlier judgments.
6. In terms of Rule 11 (1) of the Delhi Police (Punishment and Appeal) Rules, a conviction could not have authorized the administrative authority to issue an order of dismissal or removal as long as the appeal was pending. In the opinion of the disciplinary authority or the appellate authority, conviction of a person under the Prevention of Corruption Act, may prima facie be sufficient to hold that the officer is not fit to be retained in service. It might be a correct perspective. But the decision by the administrative authority has to be always with deference to the rules which govern the service. We are rather surprised that in spite of the authoritative pronouncement on the subject, evidently without taking appropriate legal advice, the respondents have come up with the orders which were per se unsustainable. We express our displeasure since avoidable proceedings had been precipitated.
7. In a case of conviction, before an appeal is filed in the Superior Court, it may be possible to pass orders under Article 311 (2) (a). Even during pendency of an appeal, by appropriate proceedings, a punishment, other than dismissal or removal could be inflicted. That is the legal position available as of now. The Rule making authority has not attempted to amend the restrictions now in force, even though it may be possible for them to bring in amendments, as may be possible, taking note of the Supreme Court judgment.
8. We quash the impugned orders in all the three cases. The applicants were under suspension. Although the orders of termination are quashed, it should be deemed that they are under suspension from today onwards. They will be entitled to subsistence allowance as permissible under the law but the suspension need not be reviewed from time to time because it has been brought about by order passed by us. Nevertheless, it will be within the rights of the respondents to review the suspension in their discretion and/or to subject the officers to appropriate proceedings as might be warranted by the rules. The period interregnum, all throughout is to be regularized/dealt with, subject to the outcome of the pending appeals. O.As are disposed of as above.
9. Let a copy of this order be placed in OA 3469/2009 and OA 3470/2009.
(Shailendra Pandey) (M. Ramachandran) Member (A) Vice Chairman (J) `SRD