Central Administrative Tribunal - Delhi
Rajbir Singh vs Union Of India (Uoi) And Ors. on 6 April, 2000
JUDGMENT
Ashok Agarwal, Chairman
1. The applicant in the instant case was working as Head Constable with Delhi Police. Disciplinary proceedings were initiated against him by issue of Summary of Allegations on 10.12.1993 which read as under:
"It is alleged that H.C. Rajbir Singh, No. 170/C while posted at P.S. Pahar Ganj, on 16.8.1993, got the service revolver 38 Bore No. 1359 along with 5 live cartridges from P.S. Malkhana and took it with him for arrangement duty in connection with independence day. He was supposed to deposit the revolver alongwith ammunitions in proper condition in the P.S. Malkhana but he failed to do so. He later reported that the said revolver has been misplaced. This is a serious lapse on his part being a member of Police force where vigorous training is given to keep the arms safely.
The above Act on the part of H.C. Rajbir Singh 170/C amounts to gross misconduct, negligence, carelessness and dereliction in the discharge of his official duty and unbecoming of a Police Officer which makes him liable to be dealt under Rule 15 of the Delhi Police (P&A) Rules, 1980"
2. After recording of prosecution evidence, a charge was framed against the applicant on 2.5.1994. As far as the defence of the applicant in respect of the charge of loss of his service revolver is concerned, the same is reflected in his reply dated 25.8.1994 at Annexure 'M'. The same, inter alia, reads as under:
".....I having full faith and belief in Constable Salam Mohd. as being the Police Personnel working with me in the same police station had given my Service Revolver along with five live cartridges to Constable Salam Mohd. to keep in his box as a safe custody.
On 13.8.1993, in the Evening, when I was going to my native place, I enquire from other police personnels about Constable Salam Mohd. and came to know that Constable Salam Mohd. had gone in the area to perform his duty.
Since I was not sure about his whereabouts where he was performing his duty and I had to go my Native place just for a day, thinking that I will take back my service Revolver from Constable Salam Mohd. on the next day, I left for my native place. On 16th August, 1993 I asked Constable Salam Mohd. to return my Service Revolver as I have to deposit with P.S. Malkhana.
Constable Salam Mohd. told me that my Service Revolver which I had given to him to keep in his box, is missing from the Box and he suspected the hand of a boy named Naresh S/o Sh. Bhagwan Dass resident of Village Rampur, P.S. Vishalpur, District Agra (U.P.) who was working at that time in the Police Station itself. Finding no other alternative and clue to the recovery of the Revolver I lodged an FIR bearing No. 418/93 with P.S. Pahar Ganj on the same day i.e. 16.8.1993 at 11.05 a.m."
3. In the aforesaid defence, it is clear that applicant has admitted the loss of his service revolver; not only that but the same also shows his callous behaviour in the matter of preserving the said service revolver. The Inquiry Officer by his report of the 30th of June, 1994 has found the applicant guilty of the charge. The findings of the Inquiry Officer were duly served on the applicant. Applicant submitted his representation against the same. The Disciplinary Authority by an order passed on 4.10.1994 has accepted the findings of the Inquiry Officer and proceeded to award a penalty of with-holding of three increments with cumulative effect. The suspension period has been directed as period not spent on duty. The Appellate Authority has thereafter on 7.12.1994 issued a show cause notice to the applicant purporting to be issued under Rule 25 B of the Delhi Police (Punishment and Appeal) Rules, 1980 to show cause why the order of penalty imposed on the applicant should not be enhanced to one of reduction to the rank of Constable. Applicant on 21.12.1994 showed cause. By the impugned order passed by the Appellate Authority on 27.6.1995, a penalty of forfeiture of four years approved service for a period of 4 years with a direction that he will not earn increments of pay during the period of reduction and on expiry of the said period, the reduction will have the effect of postponing his future increments of pay has been imposed on him.
4. Aforesaid order was carried by the applicant to the Revisional Authority, who by an order passed on 20.5.1996 has dismissed his revision application. Aforesaid orders are impugned in the present O.A.
5. As far as the merits of the matter are concerned, the finding arrived at by the Disciplinary Authority holding the applicant guilty of the charge is not capable of being successfully assailed as the same is virtualy admitted by the applicant. Smt. Avnish Ahlawat has accordingly not made submissions in that behalf. She has, however, strenuously urged that the Appellate Authority was not at all justified in enhancing the penalty as has been done in the instant case. According to her, the Appellate Authority was not legally authorised even to issue a show cause notice for the purpose of enhancing the penalty imposed by the Disciplinary Authority, As far as the said show cause notice is concerned, the same purports to have been issued in exercise of a power of revision purported to have been vested in the Appellate Authority under Rule 25 B of the Delhi Police (Punishment and Appeal) Rules, 1980. Aforesaid Rule 25-B has been brought into force by a Notification issued on 29.6.1994 which provides as under :
"25B. Review--The Commissioner of Police, an Addl. Commissioner of Police; Dy. Commissioners of Police and Addl. Dy. Commissioners of Police; Principal, Police Training School or College; or any other officer of equivalent rank may at any time call for the records of awards made by any of his subordinate either on his own motion or otherwise and confirm, enhance, modify or annual the same or make further investigation or direct such to be made before passing orders :
Provided that no action under this sub-rule shall be initiated more than 6 months after the date of the order sought to be reviewed except with the prior approval of the Lt. Governor, Delhi.
(ii) If any award of dismissal of removal from service is annulled, the officer annuling it shall state whether it is to be recorded as suspension followed by re-instatement or not. The order shall also state whether service previous to dismissal or removal shall count for pension or not.
(iii) In all cases in which an officer proposes to enhance punishment he shall, before passing final orders give the defaulter concerned an opportunity of showing cases, in writing, including personnel hearing, if asked for, why his punishment should be enhanced.
6. Aforesaid Rule is framed in exercise of the power conferred by Section 147 of the Delhi Police Act, 1978 which so far as is relevant for the present inquiry provides as under:
"147. Power to make rules :
(1) The Administrator may make rules for carrying out the purposes of this Act.
(2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely;
(a) and (b) xxx xxx xxx
(c) awarding of any of the punishments referred to in Sub-section (1) or Subsection (2) of Section 21 to any police officer or subordinate rank;
(d) to (k) xxx xxx xxx (1) any other matter which has to be, or may be, prescribed, or provided for by rules, under this Act".
7. Section 148 of the Delhi Police Act which is also relevant for the inquiry done provides as under:
"148. Notification of rules and regulations in the Official Gazette and laying of rules and regulations.
(1) Every rule and regulation made under this Act shall be made by notification in the Official Gazette. (2) Every rule and regulation made under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or regulation, as the case may be, or both houses agree that the rule or regulation should not be made, the rule or regulation shall thereafter have effect only in such modified form or be of no effect as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule or regulation.
(3) xxx xxx xxx"
8. The power to impose punishment is provided in Section 21 of the Delhi Police Act which provides as under :
"21. Powers of punishment :
(1) Subject to the provisions of Article 311 of the Constitution and the rules, the Commissioner of Police, Additional Commissioner of Police, Deputy Com missioner of Police, Additional Deputy Commissioner of Police, Principal of the Police Training College or of the Police Training School or any other officer of equivalent rank, may award to any police officer of subordinate rank of the following punishments, namely :
(a) dismissal;
(b) removal from service;
(c) reduction in ranks;
(d) forfeiture of approved service;
(e) reduction in pay;
(f) withholding of increment; and
(g) fine not exceeding one month's pay.
(2) to (5) xxx xxx xxx"
9. Based on the aforesaid provisions Smt. Ahlawat has contended that the aforesaid Notification by which the aforesaid Rule has been framed has not been placed before the House of the Parliament as required under Sub-section (2) of Section 148 of the Delhi Police Act. The same can, therefore, have no force of law. She has further submitted that aforesaid Rule is also wholly unjustified if one has regard to the provisions of the Act, more particularly Sections 21 to 23, whereas Section 21 prescribes the different punishments which can be awarded to the delinquent found guilty in the Disciplinary proceedings, Section 22 prescribes for procedure for awarding punishment and Section 23 prescribes for an appeal against an order of punishment passed in Disciplinary proceedings. According to Smt. Ahlawat, the Act nowhere prescribes the power to enhance the penalty. In the circumstances, the provision contained in the aforesaid Rule 25-B empowering the officers mentioned therein to enhance the penalty is ultra vires the Act and she has claimed that the same is liable to be struck down.
10. In our judgment, it is not necessary to decide the aforesaid contentions in regard to the vires of the aforesaid Rule in the instant O.A. as the present O.A. deserves to be allowed on the first ground itself namely, that the Appellate Authority in the instant case has acted beyond his lawful Authority while enhancing the penalty in exercise of the provisions contained in Rule 25 B (iii) of the Rules. We find that the aforesaid Rule is similar to Rule 17 (2) of the Bombay Police (Punishment and Appeal) Rules, 1956 which had come for consideration of the Supreme Court in the case of State of Mysore and Ors. v. H.D. Kolkar, AIR 1974 SC 19=1974 SLJ 213 (SC). The Supreme Court in the aforesaid case has ruled as under:
"10. It is clear from the language of Clause (c) of Section 25(2) that only rules and orders which could be made under that clause are rules and orders for the exercise of the power conferred by Section 25(2)(a). The words "the exercise of any power conferred by this Sub-section shall be subject always to such rules and orders as may be made by the State Government" in Section 25(2)(c) would indicate that" the Government have no power to make any rule or order arrogating to themselves a power of revision over an order of punishment passed under Section 25(2)(a). What is made subject to the rules or orders to be passed or made by Government is the exercise of any power" conferred under Clause (2)(a) of Section 25 can only mean that the Government will have power to pass rules or orders for regulating the procedure or such other matters for the exercise of the power conferred by Sub-section (2)(a) of Section 25 by the officers mentioned therein. The power to enhance the punishment is a power which can be exercised only after the concerned officer has exercised his power under Section 25(2)(a). In other words, rules or orders can be made by Government under Section 25(2)(c) only for guiding him either in the matter of procedure, or the manner of arriving at a decision. It is obvious from the language of Section 25(2)(c) that while the power exercisable under Section 25(2)00 is subject to the rules and orders made by the Government, the decision which comes into being after the exercise of that power is not subject to the supervision of the Government, by framing a rule or making an order in that behalf, Once the exercise of such power results in the imposition of a punishment, the punishment becomes final subject only to an appeal which is authorised by Section 27. The consequence is that Rule 17(2) of the Rules, by which the Government sought to acquire power to call for the records and to revise orders passed under Section 25(2)(a) and to enhance the punishment imposed, was clearly beyond its competence".
11. Aforesaid decision of the Supreme Court was followed by us in the case of ASI Raghubir Singh v. Union of India and Ors. (O.A. 1133/99), decided on 15.3.2000 and the order enhancing penalty was quashed and set aside. Aforesaid decisions apply with equal force to the instant case. In the circumstances, we have no hesitation in holding that the Appellate Authority in the instant case has acted beyond his powers in enhancing the penalty. The said order is required to be quashed and set aside. In view of this finding, we find it unnecessary to dwell on the question of vires raised by Smt. Ahlawat based on the power to frame Rules conferred by Section 147 of the Delhi Police Act.
12. In the above facts and circumstances of the case, the impugned order passed by the Appellate Authority being the Additional Commissioner of Police, Northern Range, Delhi dated 27.6.1995 (Annexure 'B') enhancing the penalty is quashed and set aside as also the order of the Re visional Authority being the Commissioner of Police passed on 20.5.1996 (Annexure 'B') dismissing the revision petition is also quashed and set aside. The initial order passed by the Disciplinary Authority on 4.10.1994 imposing punishment of withholding of three increments with cumulative effect at Annexure 'C' is maintained.
13. Present O.A. is allowed in the aforesaid terms. No order as to costs.