Central Administrative Tribunal - Delhi
Liyakat Ali vs Govt. Of Nct Of Delhi on 14 August, 2008
Central Administrative Tribunal
Principal Bench
OA No.637 /2008
New Delhi, this the 14th day of August, 2008
Honble Justice Mr. M.Ramachandran, Vice Chairman (J)
Honble Dr. Ramesh Chandra Panda, Member (A)
Liyakat Ali , Ex-Head Constable (driver)
S/o Shri Altaf Ali
C-134/1, Gali No.8
Uttari Ghonda,
Delhi. Applicant
(By Advocate: Shri M.K.Bhardwaj)
Versus
Govt. of NCT of Delhi, through:
1. Lt. Governor of Delhi,
Raj Niwas,
Delhi.
2. The Commissioner of Police,
Police Headquarters,
New Delhi.
3. The Dy Commissioner of Police,
Police Headquarters, ITO,
New Delhi.
2. The Dy Commissioner of Police,
Police Control Room, Delhi. Respondents
(By Advocate: Shri Rishi Prakash)
ORDER
By Honble Dr. Ramesh Chandra Panda, Member (A) The Applicant has filed this OA under Section 19 of the Administrative Tribunals Act assailing (i) the circular of Commissioner of Police, Delhi dated 9.12.2005; (ii) the order dated 29.3.2006 (Annexure A-1) by which the Applicant was dismissed from service; and (iii) the impugned order of the Appellate Authority dated 2.3.2007 (Annexure A-2) by which his appeal was rejected. He has prayed to quash and set aside the said two orders dated 29.3.2006 and 2.3.2007 and to reinstate him in service with all consequential benefits. He has also sought this Tribunal to declare the Respondent-2s circular dated 9.12.2005 as ultra vires of the Constitution.
2. Brief facts of the case is that the Applicant is ex-Head Constable (driver) in Delhi Police (Belt No.63/Sec./ now 4027/PCR) P.S. No.298/2007. When one Sanjay Kumar was crossing railway line on 12.5.1992, due to some dispute on financial matter between him and the Applicant, latter fired at the former. A case was registered against the Applicant vide FIR No.248/96 under Section 307 of IPC and Section 27 of the Arms Act. He was placed under suspension by order dated 13.5.1996 and was reinstated in the order dated 17.11.1997 with out prejudice to the criminal case pending against him. The Learned Trial Court of Shri V. K. Malhotra, Additional Sessions Judge at Karkardooma convicted the Applicant of the offence punishable under Section 307 IPC and 27 of the Arms Act, as he used the service revolver for unlawful purpose causing injuries to said Sanjay Kumar. The Applicant was sentenced to 3 years RI and fine of Rs.3000 in default 3 months of SI for the offence u/s 307 IPC and 1 year RI and a fine of Rs.1000 in default one month SI u/s 27 of Arms Act. He filed an appeal to the Honble High Court of Delhi against the conviction (CIL No.99/2000). Taking into account the suspension of Applicants substantive sentence having been suspended by the Learned Trial Court till 28.2.2000, Honble High Court ordered on 22.2.2000 in Crl. No.1187/2000, that substantive sentence of imprisonment awarded to the appellant shall remain suspended pending disposal of the appeal, on his furnishing bail of Rs.10000 in personal bond with one solvent surety in the like amount to the satisfaction of the trial court. In the mean time, taking into consideration the facts leading to the Applicants conviction; the Police Head Quarter Circular NO.XVI/60/Pl./12266-365/CR-1/PHQ dated 9.12.2005 and the Honble Supreme Court decision in Civil Appeal No.2992 of 1995 arising out of SLP (C) No.684 of 1995 Deputy Director of Collegiate Education (Administration) Madras versus S. Nagoor Meera where it has been observed that clause (9) of second proviso to Article 311 (2) is relevant for the conduct which has led to the conviction on criminal charge, the Deputy Commissioner of Police, Police Control Room, Delhi vide his order 4455-4554 HAP (P-IV)/PCR dated 29.3.2006 ordered under Article 311 (2) (a) of the Constitution the Applicants dismissal from the service with immediate effect. Suspension period (13.5.1996 to 16.11.1997) was to be treated as period not spent on duty. The Applicant filed an appeal, which was considered by the Additional Commissioner of Police (PCR & Comn) Delhi; heard the Applicant on 28.2.2007.He held that there was no fresh ground for considering the appeal and hence rejected the Applicants appeal vide his order dated 2.3.2007.
3. The Applicant in his averment has relied on the orders of this Tribunal in OA No.544/2006, 546/2006, 1145/2006, 1053/2006 and 1157/2006 decided on 9.3.2007 wherein, similar prayers were allowed and the impugned circular was quashed and set aside.
4. Without going into the facts, circumstances and merits of the case, we feel it appropriate to look into the legal aspects of the case. We, therefore, refer hereto the relevant Rule of the Delhi Police (Punishment and Appeal) Rules, 1984 under which the Applicant was dealt with. The Delhi Police (Punishment and Appeal) Rules, 1984 were framed under by the Respondent No 1 under Section 147(1) and (2) of Delhi Police Act, 1978. The Rule 11 exclusively provides how to deal with a subordinate rank official convicted in a Criminal Court of an offence as follows :-
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.
(2) If such police officer is acquitted on second appeal or revision, he shall be reinstated in service from the date of dismissal or removal and may be proceeded against departmentally.
(3) In cases where the dismissal or removal from service of the convicted police officer is not considered necessary, the disciplinary authority may examine the judgment and take such departmental action as it may deem proper.
(4) When a police officer is convicted judicially and consequently dismissed or removed from service, and it is desired to ensure that the officer dismissed or removed shall not be re-employed elsewhere, a full descriptive roll with particulars of punishments, shall be sent for publication in the Delhi Police Gazette.
5. Keeping in view the Rule 11 (supra), a Circular No.479-510/CR-I,PHQ dated 6.1.1994 was issued by the Commissioner of Police(Respondent No 2). The said Circular withstood the test of time since it was in conformity with the Delhi Police (Punishment and Appeal) Rules 1984. The Circular stated as follows:-
Instances have come to notice where disciplinary authorities have dismissed under Article 311 (2) (a) of the Constitution those police personnel who had been convicted by a court of law, without awaiting result of the pending appeal in a higher court. This act contravenes Rule 11 of Delhi Police (Punishment and Appeal) Rules, 1980 and also renders the departments liable to unnecessary and avoidable litigation in court.
Keeping spirit of Rule 11 in view it is advised that action under Article 311 (2) (a) may not be taken where the first appeal of the convicted police personnel is pending in the appellate court.
6. Deviating from the above Circular dated 6.1.1994 and in supercession of the same the Commissioner of Police issued a fresh Circular XVI/60/Spl/13366-365/CRI PHQ dated 9.12.2005. The extract of the same is here under :-
The Constitution of India provides [Articles 311 (2) (a)] that a Government servant can be dismissed/removed from service or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge. On the other hand, Section 11 (1) of the Delhi Police (Punishment and Appeal) Rules provides that action to dismiss/remove etc. of police officers on conviction in a criminal case can only be taken after the result of the first appeal is known. In a Civil Appeal No. 2992 of 1995 (arising out of SLP (C) No. 684 of 1995) Deputy Director of Collegiate Education (Administration), Madras v/s S. Nagoor Meera, the Honble Supreme Court has observed that what is relevant for clause (a) of second proviso to Article 311 (2) is the conduct which has led to the conviction on a criminal charge. The apex Court has observed that even if an Appellate Court suspended the order there can be no question of suspending the conduct. It has categorically stated that passing such orders under Article 311 (2) (a) are not barred merely because the sentence has been suspended by the Appellate Court and/or the said Government servant/accused has been released on bail.
The provisions of the Constitution of India and observations of the Honble Supreme Court should definitely prevail over the provisions of the Delhi Police (Punishment and Appeal) Rules. Further, as the Honble Apex Court has pointed out, action under Clause (a) of the second proviso to Article 311 (2) focuses on the conduct leading to the conviction. The Honble Apex Court has in fact specifically observed that the clause does not speak of sentence or punishment awarded. Section 11 (1) of the Delhi Police (Punishment and Appeal) Rules is, on the other hand, conviction based.
In view of this, disciplinary authorities should take action under the Constitution of India in appropriate cases.
This circular supersedes the earlier circular issued vide this Hdqrs. No. 479-510/CR-I, PHQ dated 6-1-1994.
7. The simple issue before us is whether the Police Commissioners Circular will operate to the exclusion of Rule 11 of the Delhi Police (Punishment and Appeal) Rules 1984? Next issue is which will be legally operable in case there are contradictions between the Circular and Rule? Honourable Supreme Court on several occasions has indicated that once Rules are framed, action should be regulated by the Rules and not by executive instructions/circulars. The Rules framed in exercise of powers conferred under the proviso to Article 309 of the Constitution are solemn Rules having binding effect. Honourable Supreme Court in the WP No12874 of 1985 between T. Kannan and Others Versus S K Nayyar and Others ((1991) 1 SCC545) decided on 9-11-1990 as follows:-
Acting in a manner contrary to those Rules does create problem. Very often government themselves get trapped on account of their own mistakes or actions in excess of what is provided in the rules. Serious view of these lapses is taken and it is hoped that the government both at the Centre and in the States would take note of this position and refrain from acting in a manner not contemplated by their own rules.
8. In B.S. Minhas v. Indian Statistical Institute (AIR 1984 SC 363.) Honourable Apex court decided that when a procedure has been prescribed, it was implicit that compliance of such procedure was essential. This judicially evolved rule of administrative law is firmly established { A.S.Ahluwalia v. Punjab State, (1975) 3 SCR 82 : (AIR 1975 SC 984) and in subsequent decision given in Sukhdev v. Bhagatram, (1975) 3 SCR 619 : (AIR 1975 SC 1331)}.
9. As early as 1980s it has been held by the Apex court that the Rules prevail over the contractual agreements. In Union of India vs AK Roy {(1986) 1 SCC 675} the Honourable Supreme Court decided that when a government servant, whose appointment though originated in a contract, the terms and conditions of the service of such employee under the government who once appointed, be governed by the rules governing his service conditions. It will not be permissible thereafter for him to rely upon the terms of contract which are not in consonance with the rules governing the service. The powers of the government under Article 309 to make rules, to regulate the service conditions of its employees are very wide and cannot, in any manner, be fettered by any agreement.
10. Only if the Rules provide any procedural gap, the executive circular can fill the gap. In the present OA no such contingency and gap exist and, therefore, the Cicular being ab initio contrary to the Rules shall be held ultra vires. We rely on the Apex Court decision in Ex.Capt. K. Balasubrmanian v State of T.N.({1991} 2SCC708) and the relevant decision is as follows:-
8. In the abovementioned decisions, it has been laid down that although the government cannot amend the statutory rules by administrative instructions, but if the rules are silent on any particular point, the government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed. In the instant case, it cannot be said that on the date of issue of orders dated November 16, 1976 and June 15, 1977, the rules were silent on the matter of fixation of seniority of persons recruited to the Tamil Nadu Commercial Tax Service.
11. In Civil Appeal No. 2992 of 1995 (arising out of SLP (C) No. 684 of 1995) Deputy Director of Collegiate Education (Administration), Madras v/s S. Nagoor Meera (AIR 1995 SCC 1364) which has been relied on by the Respondent -2 in the impugned Circular, the Honourable Supreme Court has observed and decided as follows 9. The Tribunal seems to be of the opinion that until the appeal against the conviction is disposed of action under clause (a) of the second proviso to Article 311 (2) is not permissible. We see no basis or justification for the said view. The more appropriate course in all such cases is to take action under clause (a) of the second proviso to Article 311 (2) once a government servant is convicted of a criminal charge and not to wait for the appeal or revision, as the case may be. If, however, the government servant accused is acquitted on appeal or other proceeding, the order can always be revised and if the government servant is reinstated, he will be entitled to all the benefits to which he would have been entitled to, had he continued in service. The other course suggested, viz. to wait till the appeal, revision and other remedies are over, would not be advisable since it would mean continuing in service a person who has been convicted of a serious offence by a criminal court. It should be remembered that the action under clause (a) of the second proviso to Article 311 (2) will be taken only where the conduct which has led to his conviction is such that it deserves any of the three major punishments mentioned in Article 311 (2).
12. It is a fact that Honble Supreme Court in the judgments S. Nagoor Meera (supra) and K. C. Sareen (supra) has given interpretation of the Article 311 (2) (a) and it is also an admitted fact that Rule 11 (1) of the cited Rules of 1980 was not assailed in those cases. Hence, the Rule 11 (1) is holding the ground now, having valid statutory status. We are of the considered opinion that so long the Rule 11 (1) is in the statute book, no executive instruction can stand against the Rule. The Honble Apex Court in a catena of cases has held that judgments of courts cannot be construed as statues, the earliest case M/s Amarnath Om Prakash and others versus State of Punjab and others 1985 (1) SCC 345 where the Honble Supreme Court decided as follows :-
10 We consider it proper to say, as we have already said in other cases, that judgments of courts are not to be construed as statues Judges interpret statues, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes
13. This Tribunal has dealt with issues similar to the present OA in a batch of 32 OAs. Involving large number of Applicants where Article 311 (2) (a) of the Constitution of India, including the legal validity of the Police Commissioners Circular dated 9.12.2005 was the subject. It had been observed.
18. Resultantly, we hold that the impugned orders referred to in the applications issued by the original authority, appellate authority or the revisional authority, as the case might be, required to be quashed, and are hereby quashed. The respondents are further interdicted from issuing dismissal orders/removal orders in respect of cases where valid appeals are subsisting. Of course, with reference to the facts, which led to the conviction, individually, submissions were made especially on behalf of the respondents. But we are disable from looking to them on the merits. We have to observe that as the Rules presently stand, there is not even a requirement that orders of the Sessions Court should have been made non operational because of the intervention of the appellate court for claiming benefit of the Rules as far as such persons are concerned.
19. Mr. Ajesh Luthra, on behalf of the Government counsel, fervently pleaded that the judiciary should be vibrantly alive to the aspirations of the general public and is expected to march with the line, freeing itself of restrictive shackles, adopting a positive step. Here, he points out that persons, who are already adjudged on guilt by criminal courts, pray that they should be permitted to walk back to their sensitive posts and are to be put in charge of such offices.
20. But we are not law makers; rather our duty is confined to enforcement of law, and at time, interpretation. We are convinced that a swipe attempted through a circular to get across a hurdle was too ambitious to be upheld. We, however, notice the statement made by the Additional Solicitor General that an amendment to the Rules so as to streamline it with other similar statues is in active governmental consideration. The discussions, therefore, are to end here. The presence of the appeal is sufficient to confer on the applicants with protection by way of a statutory stay. This had been overlooked by the respondents. But we leave open the right of the Departmental authorities to deal with the cases, which come with the purview of Rule 11 (3) of the Rules, as there is no embargo for steps being taken in such of the cases. Taking notice of the totality of the circumstances, we hold that the applicants will be deemed as continuing under suspension all throughout, especially since this was not a situation where they could have claimed the benefit of Rule 27 (c) of the Rules. This direction will exclude the cases where applicants were undergoing actual imprisonment.
14. Having considered the facts of the case and the rival contentions of both Applicants and Respondents, we come to the conclusion that a Rule (in the present case Rule 11 of the Delhi Police (Punishment and Appeal) Rule, 1980) framed under a statute (in the present case under Section 147 of Delhi Police Act, 1978) has the authority of a statute and cannot be obviated/overruled by a Circular (in the present case the impugned circular dated 9.12.2005 issued by Police Commissioner of Delhi). Further, the Respondent No.2 who issued the Circular on 9.12.2005 is subordinate authority to the Respondent No.1 who issued the cited Rules under the powers of delegated legislation and the former does not seem to have got the approval of the circular from the latter. Moreover, since the Rule 11 (1) is clear and unambiguous in respect of no such order shall be passed till such time the result of the first appeal that way have been filed by such Police Officer is known, it cannot be presumed by the Respondent No.2 that the Respondent No.1 has made a mistake in framing the said Rule. We are aware of this Tribunals jurisdiction and are not inclined to give any direction to the competent authority to amend such a Rule in a particular manner. Such powers vest with the legislature and the Authorities vested with powers of delegated legislation.
15. Although the order as referred to above are subject matter of writ petition, and the operation of the order has been stayed, we feel that may not be material as of now, as we are at best to be credited with consistency.
16. In view of the above discussions and the judicial precedents, we find the presence of an appeal by the Applicant against the decision of the Learned Trial Court is pending with the Honble High Court and sentences have been suspended. This is sufficient to confer on the Applicant the protection by way of a statutory stay as per Rule 11(1) of the Delhi Police (Punishment and Appeal) Rule, 1980. The impugned Circular dated 9-12-2005 in so far as violative of the said Rule is quashed and set aside. The impugned orders dated 29-3-2006 and 2-3-2007 are also quashed and set aside. Taking full facts and the circumstances of the case into account we hold that the Applicant will be deemed as continuing under suspension throughout. With these directions the Original Application is disposed of and the respective parties will bear their own costs.
(Dr. Ramesh Chandra Panda) (M. Ramachandran)
Member(A) Vice Chairman (J)