Central Administrative Tribunal - Delhi
Tarun Vikram vs Commissioner Of Police on 21 January, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA 2693/2012
ORDR RESERVED ON: 11.01.2013
ORDR PRONOUNCED ON:21.01.2013
HONBLE MR. G. GEORGE PARACKEN, MEMBER (J)
HONBLE MR. SHEKHAR AGARWAL, MEMBER (A)
Tarun Vikram,
S/o Sh. Ram Mahesh Chaudhary,
R/o H. No. 405, Gomukh Aptt,
Delhi Police Complex,
Kausambi, Ghaziabad, U.P. Applicant.
(By Advocate Shri Gyanender Singh)
Versus
1. Commissioner of Police
(Delhi Police),
Police Headquarters,
MSO Building, IP Estate,
New Delhi.
2. Special Commissioner of Police
Armed Police, Delhi.
3. Deputy Commissioner of Police,
7th Bn., DAP, Delhi. Respondents.
(By Advocate Ms. Sumedha Sharma)
O R D E R
Shri G. George Paracken:
The applicant in this case has challenged the impugned Annexure A-1 order dated 20.10.2011 of the disciplinary authority dismissing him from service and the Annexure A-2 order dated 29.02.2012 of the appellate authority rejecting his appeal.
2. The brief facts of the case are that the applicant while posted in PS Kalyanpuri, Delhi reported to the SHO Kalyanpuri on 17.09.2004 that four persons had attacked him near Trilok Puri Ganda Nala and as a result of which he was compelled to fire from his service revolver in his defence. He also reported that during the scuffle, the assailants took off his mobile phone, identity card and UTI cards etc. Immediately a wireless message was flashed on D.M. Net regarding the firing incident and an inquiry was conducted in the matter. Subsequently, FIR No 311/2004 under Section 307 IPC was registered at PS Mayur Vihar. However, on verification of facts and interrogation of the applicant, it was revealed that he was involved in the case and he was arrested. Thereafter, he was placed under suspension w.e.f. 17.09.2004 vide order of the same date issued by the DPC East District. However, subsequently he was reinstated in service vide order dated 30.09.2010.
3. In the criminal case, the District & Sessions Judge found him guilty and convicted vide judgment dated 26.09.2011 for committing a heinous crime of attempting to commit the murder of injured Subhash by firing on his chest misusing the service revolver. On 27.09.2011, the Sessions Court awarded him a rigorous imprisonment for a period of 10 years with fine of Rs.25,000/- for the offence punishable u/s 307 IPC and in default of payment of fine he shall undergo simple imprisonment for a further period of six months. Therefore, the applicant was again placed under suspension w.e.f. 26.09.2011 i.e. the date of his arrest and conviction vide order dated 19.10.2011.
4. According to the respondents, since the applicant did not file any appeal against the judgment of the Sessions Court before the High Court for suspension of sentence, he was dismissed from service vide order dated 20.10.2011. According to the said order, since the applicant has not filed any appeal against the aforesaid judgment before the Honble High Court in terms of the PHQ No.3826-3925/HAR/PHQ dated 04.08.2011, such officials can be dismissed under Article 311 (2) (a) of the Constitution of India. Accordingly, the conduct of the applicant has been examined and found that he was having desperate character and the Sessions Court has observed in its judgment that the prosecution has duly established the occurrence of filing a gun shot by accused from service revolver on the date of incident on the chest of injured/victim Subhash (PW1). The injured (PW1) has duly supported the case of the prosecution and his testimony has been duly corroborated by his nephew Sunder (PW2). The prosecution has duly proved the intention of the accused to cause the death of injured (PW1) as it has duly been established that he was carrying service revolver in his hands at the time of incident and fired a gun shot from it on the chest of injured Subhash (PW1). Firing a gun shot from the service revolver and injuries given by it on the person of injured coupled with the medical evidence duly established that accused was having knowledge that by his said act, it would result into death of the injured. The Identity of the accused being the assailant has duly been established that he was duly identified by injured (PW1) as well as other eye witness Sunder Singh (PW2). The presence of accused at the spot at the time of incident has also been established that the personal belongings were recovered from the spot. (Illegible) Policeman, in such a heinous criminal act has to be dealt with a heavy hand and has committed retention in Police Service is not warranted in the public interest and the criminal offence committed by the defaulter Constable is such in nature that the further retention of the defaulter in Delhi Police, who has been convicted by the Court of law, is undesirable in public interest.
5. In the same impugned order, the disciplinary authority has also treated his suspension period from 17.09.2004 to 30.09.2010 and from 26.09.2011 onwards as period not spent on duty for all intents and purposes. The applicant filed an appeal against the order of the disciplinary authority. However, the appellate authority observed in its order that the applicant did not file any appeal against the judgment of the Sessions Court until the disciplinary authority passed its orders. The appellate authority has also stated that the disciplinary authority has passed the order of dismissal against the applicant under Article 311 (2) (a) of the Constitution in terms of PHQ Circular No.3826-3925/HAR/PHQ dated 04.08.2011. The appellate authority has further stated in its order that the applicant in his appeal has mainly pleaded that (i) he has been punished in a disproportionate manner and without conducting any departmental enquiry and without giving him any opportunity for being heard, which is arbitrary; (ii) he has been falsely implicated in the said case; (iii) he has filed appeal against the conviction in the Honble Delhi High Court on 30.11.2011; (iv) he is the sole bread earner of his family consisting of wife and two school going children. He has, therefore, requested to set aside the punishment order. The appellate authority considered the aforesaid submissions of the applicant but found them devoid of any merit. It observed that he has been dismissed from service without conducting a departmental enquiry but the disciplinary authority has taken the decision to do so, in view of circular dated 04.08.2011 issued by PHQ on 04.08.2011 wherein it has referred to the decision of the High Court dated 14.12.2008 in Writ Petition (Civil) No. 1044/2008 Commissioner of Police Vs. Brij Pal Singh. The appellate authority has also stated that had the applicant been falsely implicated in the FIR and was a victim of any biased and impartial investigation, then the Trial Court in its judgment dated 26/27.09.2011 would not have convicted and sentenced him to undergo rigorous imprisonment. Further, the appellate authority justified the order of the disciplinary authority on the ground that the applicant was dismissed from service on 20.10.2011 i.e. before he has filed his appeal before the Honble High Court which was on 30.11.2011.
6. The applicant challenged the aforesaid orders of the disciplinary authority as well as the appellate authority on the ground that the penalty of dismissal imposed upon him was in violation of the principles of natural justice as laid down for the purpose of departmental proceedings. The learned counsel for the applicant has also relied upon the judgment of the Apex Court in Jaswant Singh Vs. State of Punjab (AIR 1991 SC 3) wherein it has been held that where the subjective satisfaction for dispensing with the inquiry was not supported by any independent material, dismissal without holding the inquiry would be illegal. The relevant part of the said judgment is as under:
4. Article 310 of our Constitution which engrafts the pleasure doctrine of the English common law is, however, qualified by the opening words 'except as expressly provided by this Constitution'. Article 311 is one such express provision. According to Clause (1) thereof, a person who is a member of a civil service cannot be dismissed or removed from service by an authority subordinate to that by' which he was appointed. Clause (2) next provides that no such person shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. Then comes the first proviso with which we are not concerned. The second proviso has three clauses but we are concerned with clause (b) only. Clause (b) of that second proviso reads as under:
"Provided further that this clause shall not apply -
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(b) where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry."
Thus the English doctrine incorporated in Article 310 which is qualified by the opening words "except as expressly provided by this Constitution" is subject to Article 311(1) and (2) which contains safeguards against termination from service. However, the second proviso to Article 311 (2) is again in the nature of an exception and lays down that in cases catalogued in Clauses (a), (b) and (c) thereof the requirement of an inquiry can be dispensed with. The scope of Articles 310 and 311 of the Constitution was examined by this Court in Union of India v. Tulsi Ram Patel, 1985, (Suppl) 2 SCR 131 : (AIR 1985 SC 1416), wherein by majority of this Court held that once the requirements of the relevant clause of the second proviso are satisfied, the services of a civil servant can be terminated without following the audi alteram partem rule. It was held that since the requirement of Article 311 (2) was expressly excluded by the second proviso, there was no question of introducing the same by the back door. On this line of reasoning, the majority held that Challapan's case, (1976) 1 SCR 783 : (AIR 1975 SC 2216) was not correctly decided. It, therefore, took the view that it is not necessary to offer a hearing to the civil servant even on the limited question of punishment.. Insofar as Clause (b) is concerned this Court pointed out that two conditions must be satisfied to sustain any action taken thereunder. These are (i) there must exist a situation which renders holding of any inquiry "not reasonably practicable"; and (ii) the disciplinary authority must record in writing its reasons in support of its satisfaction. Of course the question of practicability would depend on the existing fact-situation and other surrounding circumstances, that is to say, that the question of reasonable practicability must be judged in the light of the circumstances prevailing at the date of the passing of the order. Although clause (3) of that Article makes the decision of the disciplinary authority in this behalf final such finality can certainly be tested in a Court of law and interfered with if the action is found to be arbitrary or mala fide or motivated by extraneous considerations or merely a ruse to dispense with the inquiry. Also see Satyavir Singh v. Union of India, (1985) 4 SCC 252. (AIR 1986 SC 555), Shivaji Atmaji Sawant v. State of Maharashtra, (1986) 2 SCC 112 : (AIR 1986 SC 617) and lkramuddin Ahmed Borah v. Superintendent of Police, Darrang, 1988 (Supp 1) SCC 663: (AIR 1988 SC 2245).
5. The impugned order of April 7, 1981 itself contains the reasons for dispensing with the inquiry contemplated by Article 311(2) of the Constitution. Paragraph 3 of the said order, which we have extracted earlier, gives two reasons in support of the satisfaction that it was not reasonably practicable to hold a departmental enquiry against the appellant. These are (i) the appellant has thrown threats that he 'with the help of other police employees will not allow holding of any departmental enquiry against him and (ii) he and his associates will not hesitate to cause physical injury to the witnesses as well as the enquiry officer. Now as stated earlier after the two Revision Applications were allowed on October 13, 1980, the appellant had rejoined service as Head Constable on March 5, 1981 but he was immediately placed under suspension. Thereafter, two show cause notices dated April 4, 1981 were issued against him calling upon him to reply thereto within 10 days after the receipt thereof. Before the service of these notices the incident of alleged attempt to commit suicide took place on the morning of April 6, 1981 at about 11.00 a.m.. In that incident the appellant sustained an injury on his right arm with a knife. He was, therefore, hospitalised and while he was in hospital the two show cause notices were served on him at about 10.00 p.m. on April 6, 1981. Before the appellant could not reply to the said show cause notices the third respondent passed the impugned order on the very next day i.e. April 7, 1981. Now the earlier. departmental enquiries were duly conducted against the appellant and there is no allegation that the department had found any difficulty in examining witnesses in the said inquiries. After the Revision Applications were allowed the show cause notices were issued and 10 days time was given to the appellant to put in his replies thereto. We, therefore, enquired from the learned counsel for the respondents to point out what impelled respondent No. 3 to take a decision that it was necessary to forthwith terminate the services of the appellant without holding an inquiry as required by Article 311(2). The learned counsel for the respondents could only point out clause (iv)(a) o sub-para of the counter which reads as under:
"The order dated 7-4-81 was passed as the petitioner's activities were objectionable, He was instigating his fellow police officials to cause indiscipline, show insubordination and exhibit disloyalty, spreading discontentment and hatred, etc. and his retention in service was adjudged harmful."
This is no more than mere reproduction of paragraph 3 of the impugned order. Our attention was not drawn to any material existing on the date of the impugned order in support of the allegation contained in paragraph 3 thereof that the appellant had thrown threats that he and his companions will not allow holding of any departmental enquiry against him and that they would not hesitate to cause physical injury to the witnesses as well as the enquiry officer if any such attempt was made. It was incumbent on the respondents to disclose to the Court the material in existence at the date-of the passing of the impugned order in support of the subjective satisfaction recorded by respondent No. 3 in the impugned order. Clause (b) if the second proviso to Article 311 (2) can be invoked only when the authority is satisfied from the material placed before him that it is not reasonably practicable to hold a departmental enquiry. This is clear from the following observation at p. 270 (of 1985 (Supp) 2 SCR 131): (at p. 1479 of AIR 1985 SC 1416) of Tulsi Ram's case:
"A disciplinary authority is not expected to dispense with a disciplinary authority lightly or arbitrarily or out of ulterior motives or merely in order to avoid the holding of an inquiry or because the Department's case against the government servant is weak and must fail."
The decision to dispense with the departmental enquiry cannot, therefore, be rested solely on the ipse dixit of the concerned authority. When the satisfaction of the concerned authority is questioned in a Court of law, it is incumbent on those who support the order to show that the satisfaction is based on certain objective facts and is not the outcome of the whim or caprice of the concerned officer. In the counter filed by the third respondent it is contended that the appellant, instead of replying to the show clause notices, instigated his fellow police officials to disobey the superiors. It is also said that he threw threats to beat up the witnesses and the Inquiry officer if any departmental inquiry was held against him. No particulars are given. Besides it is difficult to understand how he could have given threats, etc., when he was in hospital. It is not shown on what material the third respondent came to the conclusion that the appellant had thrown threats as alleged in paragraph 3 of the impugned order. On a close scrutiny of the impugned order it seems the satisfaction was based on the ground that he was instigating his colleagues and was holding meetings with other police officials with a view to spreading hatred and dissatisfaction towards his superiors. This allegation is based on his alleged activities at Jullundur on April 3, 1981 reported by SHO/GRP, Jullundur. That report is not forthcoming. It is no one's contention that the said SHO was threatened. The third respondent's counter also does not reveal if he had verified the correctness of the information. To put it tersely the subjective satisfaction recorded in paragraph 3 of the impugned order is not fortified by any independent material to justify the dispensing with the inquiry envisaged by Article 311(2) of the Constitution. We are, therefore, of the opinion that on this short ground alone the impugned order cannot be sustained.
6. It was then submitted by learned counsel for the respondents that since the High Court had dismissed the appellant's Writ Petition in limine we may remit the, matter to the High Court for disposal on merits. We do not think that we would be justified in doing so after a lapse of almost 7 to 8 years. As we do not consider it necessary to go into the factual aspect bearing on the question of mala fides and rest our judgment on the legal aspect only, we do not think it necessary to remit the matter to the High Court and vex the appellant further by, another round of litigation.
7. In the result we allow this appeal, set aside the order of the High Court and quash the impugned order of dismissal dated April 7, 1981 and direct that the appellant shall be reinstated in service forthwith with all monetary benefits as to pay, allowances, etc. available to him from the date of his dismissal. Needless to say that it would be open to the department, if it is so advised notwithstanding the lapse of time, to proceed with the two show cause notices dated April 4, 1981. The respondents will pay the cost of this appeal.
7. Again, the learned counsel for the applicant has also stated that the reason given by the disciplinary authority is not sufficient to dispense with the inquiry. Further, he has stated that the disciplinary authoritys order is in violation of the Delhi Police (Punishment and Appeal) Rules, 1980 as the disciplinary authority has not taken the approval of the Addl. Commissioner of Police before dismissing him under Article 311 (2)(b) of the Constitution.
8. The learned counsel for the applicant has also relied upon the judgment of the High Court in the case of Commissioner of Police Vs. Brij Pal Singh (155 (2008) Delhi Law Times 115) wherein the High Court has 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 first appeal against an order of conviction and sentence. The relevant part of the said judgment reads as under:
6. On 9th December, 2005, the Petitioner issued a circular pursuant to a decision rendered by the Supreme Court in Deputy Director of Collegiate Education (Administration), Madras v. S. Nagoor Meera, 1995 (3) SCC 377. The essence of the circular is that in view of the judgment of the Supreme Court, orders could be passed dismissing or removing a convicted police officer under Clause (a) of the second proviso to Article 311(2) of the Constitution during the pendency of his first appeal against the order of conviction and sentence. The circular provides that an order passed under Clause (a) of the second proviso to Article 311(2) of the Constitution is not barred, merely because the sentence is suspended by the appellate Court or the convict has been released on bail. In view of this, the disciplinary authority was required to take action under the Constitution in appropriate cases. This circular was issued in supersession of an earlier circular dated 6th January, 1994.
7. For facility of reference the circular dated 9th December, 2005 reads as follows:-
The Constitution of India provides [ Article 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 this 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 S.L.P. (C) No.684 of 1995) Deputy Director of Collegiate Education (Administration), Madras Vs. 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 & Appeal) Rules. Further as the Honble Apex Court has pointed out, action under Clause (a) of the second proviso to Article 311(2) focuses of 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 & appeal) Rules are, 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 by this Hdqrs. No.479-510/CR-I, PHQ dated 6-1-1994.
8. 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.
9. Apparently acting in pursuance of the above circular the Petitioner passed an order on 8th February, 2006 dismissing the Respondent from service in exercise of powers conferred by Clause (a) of the second proviso to Article 311(2) of the Constitution. Similar orders of dismissal/removal were passed in respect of all other Respondents in this batch of writ petitions. The Tribunal noted that except in the case of some Respondents, the dismissal/removal orders were not given effect to because of the intervention of the Tribunal but in other cases the dismissal/removal orders were given effect to and a departmental appeal/revision is stated to have been filed against those orders.
10. After hearing learned counsel for the parties, the Tribunal concluded that the decision rendered by the Supreme Court in S.Nagoor Meera was not at all applicable to the facts of the case. The basic reason given by the Tribunal for coming to this conclusion is that S. Nagoor Meera did not consider a statutory bar, such as the one that exists in the proviso to Rule 11(1) of the Rules. Therefore, the Tribunal endorsed the earlier view taken by the Petitioner in this regard as contained in the circular dated 6th January, 1994 (since superseded by the circular dated 9th December, 2005). The text of the circular dated 6th January, 1994 reads as follows:-
Instances have come to notice where disciplinary authorities have dismissed under Article 311(2)(a) of the Constitution those police personnel who have 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 department 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.
11. In this view of the matter, the Tribunal held that all the applicants before it (the Respondents before us) would be deemed as continuing under suspension all throughout. This would, of course, exclude those applicants who are actually undergoing imprisonment. With this direction, all the original applications were disposed of in favour of the applicants (now Respondents before us).
12. It is against this common order passed by the Tribunal that the Petitioner is now before us under Article 226 of the Constitution.
13. It is submitted by the learned Additional Solicitor General that the proviso to Rule 11(1) has to be interpreted harmoniously. His submission appears to be that since Clause (a) of the second proviso to Article 311(2) of the Constitution permits dismissal or removal of a convicted police officer, it is permissible for the Petitioner to invoke the constitutional power to dismiss or remove the Respondent. To this limited extent, the submission of the learned Additional Solicitor General is acceptable but unfortunately for him, in this case there is a proviso to Rule 11(1) of the Rules which has to be contended with.
14. 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.
15. In this connection, it would be worth referring to J.K. Industries v. Chief Inspector of Factories and Boilers, (1996) 6 SCC 665 wherein the Supreme Court has explained the purpose of a proviso in the following words:
34. A proviso qualifies the generality of the main enactment by providing an exception and taking out from the main provision, a portion, which, but for the proviso would be a part of the main provision. A proviso must, therefore, be considered in relation to the principal matter to which it stands as a proviso. A proviso should not be read as if providing something by way of addition to the main provision which is foreign to the main provision itself. 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.
16. Learned Additional Solicitor General then contended that the result of the first appeal should be read down to mean an interim order of suspension of sentence or grant of bail to the convicted police officer by the appellate Court. In other words, it was contended that the Petitioner does not have to await the final result of the first appeal. We are unable to appreciate this artificial dichotomy sought to be created. An interim order passed in a first appeal cannot, by any stretch of imagination, be said to be the result of the first appeal. Moreover, the contention of the learned Additional Solicitor General would compel us to read words into the proviso which are not there and which is, even otherwise, impermissible in law. The expression the result of the first appeal can only have its natural meaning, which is with reference to the disposal of the appeal and nothing short of it. In fact, this is precisely the interpretation given by the Petitioner itself to the proviso to Rule 11(1) of the Rules in the circular dated 6th January, 1994.
17. The interpretation sought to be canvassed by the learned Additional Solicitor General would, even otherwise, lead to an absurd situation. Effectively, the result of accepting the argument is that a convicted police officer cannot be dismissed or removed from service until his interim application is decided. Thereafter, if the interim application is decided in his favour and the conviction or sentence is suspended, then he can be dismissed or removed from service! The contention advanced is stated only to be summarily rejected.
18. 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.
19. Learned Additional Solicitor General then posed the question: What is the Petitioner expected to do until the decision is rendered in the first appeal? 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.
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 costs of Rs. 1,000/.
9. The respondents in their reply have submitted that the applicant was dismissed from service without conducting the departmental inquiry but the decision in that case was taken in view of the Circular issued by the PHQ on 04.08.2011 wherein it has referred to the decision of the Honble High Court dated 14.12.2008 in Brij Pal Singhs case (supra).
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.
10. As the applicant did not file the First Appeal against the judgment of the Trial Court for the suspension of the sentence, the respondents have taken a considered view in the matter based on observation of the Supreme Court in Para 21 of the judgment in Brij Pal Singhs case (supra) referred to above and the PHQs circular dated 4.8.2011 and made use of the period of gap between the date of sentence and filing of First Appeal and dismissed him from service. They have also stated that had the applicant been implicated falsely in the criminal case and subjected to biased and impartial investigation, the Trial Court would not have convicted and sentenced him for undergoing rigorous imprisonment.
11. So far as the dismissal of the applicant from service without holding departmental inquiry is concerned, the respondents have submitted that it is duly supported by the statutory provisions continued in Rule 11 of the Delhi Police (Punishment and Appeal) Rules, 1980 which clearly stipulates that when a report is received from an official source, e.g. a Court or the prosecution agency, that as subordinate rank has been convicted in a Criminal Court of an offence, involving moral turpitude or on charge or disorderly conduct in a state of drunkenness or any criminal case, the disciplinary authority shall consider the nature an 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, may forthwith make an order dismissing or removing him from service.
12. We have heard the learned counsel for the applicant Shri Gyanender Singh and the learned counsel for the respondents Mrs. Sumedha Sharma. Certain dates are quite relevant in this case. On 29.06.2011, the Trial Court convicted the Applicant. On 27.09.2011, the said court awarded him rigorous punishment for a period of 10 years with fine of Rs.25,000/- for the offence punishable under Section 307 IPC and in default fine and simple imprisonment for a period of six more months. The Applicant has been undergoing rigorous imprisonment from 27.09.2011 onwards. The Applicant did not challenge the aforesaid conviction or got the sentence suspended by filing the First Appeal and the accompanying application before the High Court immediately. In fact, the disciplinary authority initially placed Applicant under suspension on 26.09.2011. He should have moved the First Appeal before the High Court at the earliest to indicate his intention not to accept the conviction and not to undergo the sentence. But he did not do so for three weeks. It was only on the 23rd day of his conviction and sentence of rigorous imprisonment the Disciplinary Authority has invoked the provision of Article 311 (2) of the Constitution to dismiss him from service duly supported by the circular issued by the PHQ on 04.08.2011 extracted elsewhere in this order. The respondents have also made use of the observation of the Apex Court in para 21 of the judgment in Brij Pal Singhs case (supra) which has also been extracted in the order.
13. We, in the above facts and circumstances, do not find any infirmity in the impugned orders of the Disciplinary Authority as well as the Appellate Authority. Resultantly, this OA is dismissed with no order as to costs.
(SHEKHAR AGARWAL) (G. GEROGE PARACKEN)
MEMBER (A) MEMBER (J)
`SRD