Central Administrative Tribunal - Delhi
Head Constable Sukhbir Singh vs The Commissioner Of Police on 26 November, 2012
Central Administrative Tribunal Principal Bench O.A.No.2424/2012 New Delhi, this the 26th day of November, 2012 Honble Shri G.George Paracken, Member (J) Honble Mrs. Manjulika Gautam, Member (A) Head Constable Sukhbir Singh No.446/E, now 4268/DAP s/o Shri Prahlad Singh, r/o E-12, Indira Gandhi Marg East Vinod Nagar Delhi 110 091. Applicant (By Advocate: Sh. Sachin Chauhan) Versus The Commissioner of Police Police Headquarters, I.P.Estate New Delhi. The Special Commissioner of Police Through Police Headquarters, I.P.Estate M.S.O.Building New Delhi. The Deputy Commissioner of Police Ist Bn., DAP Through Police Headquarters, I.P.Estate M.S.O.Building New Delhi. Respondents (By Advocate: Sh. N.K.Singh proxy for Mrs. Avnish Ahlawat) O R D E R (Oral) By G. George Paracken, Member (J):
The application of Article 311(2)(a) of the Constitution of India in the case of a police officer covered under Rule 11(1) of the Delhi Police (Punishment & Appeal) Rules, 1980 is the issue involved in this Original Application.
2. The brief facts of this case which are necessary for its adjudication are delineated herein-below: The applicant is a Head Constable in Delhi Police. While posted at PS Geeta Colony, he was apprehended on alleged by accepting of Rs.4000/- as illegal gratification from one Shri Vinod Kumar and for that reason FIR No.73/06 u/s 7/13 POC Act, 1988 was registered against him on 09.09.2006. The allegations made against him in the said FIR are that on 08.09.2006, a PCR call was received at PS Geeta Colony, Delhi, vide DD No.4A, at 12.16 AM stating that the occupants of House No.8/78, 3rd Floor, Geeta Colony, Delhi has been receiving obnoxious calls on their telephone No.20526636. On having marked the aforesaid DD to the applicant, he reached the spot along with Constable Vinod and met Ms. Lata Chouhan who told him that someone from Telephone No.22048464 has been making obnoxious calls on her telephone. She has also informed them that some case/litigation was pending between herself and one Sh. Vinod Kumar. The Applicant, therefore, called Shri Vinod Kumar in PS Geeta Colony on 08.09.2009 and told him that a complaint against him was filed by Ms. Lata Chouhhan and demanded Rs.10,000/- from him. Otherwise, he was told that he will be put behind the bars. However, the matter was settled for Rs.5000/- out of which Rs.1000/- was paid at the same time and the balance Rs.4000/- was paid on the next day.
3. On having registered the above case and arrested the applicant, he was dismissed from service, vide Office Order dated 09.09.2006 under Article 311(2)(b) of the Constitution of India. Aggrieved by the aforesaid punishment, the applicant preferred an appeal to the appellate authority but the same was rejected with the remarks that the punishment awarded to him was legal and justified.
4. Challenging the aforesaid orders of the disciplinary authority as well as the appellate authority, the applicant approached this Tribunal vide OA 220/2007 and this Tribunal vide its order dated 07.06.2007 quashed and set aside those orders and directed the respondents to reinstate him in service with retrospective effect from 09.09.2006, i.e., from the date of his dismissal with all consequential benefits but with the stipulation that he will remain under suspension from the date of reinstatement. The respondents were also given liberty to hold an inquiry against the applicant by affording opportunity for being heard and to pass any order thereafter as deemed fit. The respondents complied with the aforesaid directions and reinstated the applicant in service w.e.f. 09.09.2006 vide Office Order dated 02.11.2007. The intervening period from the date of dismissal to the date of his reinstatement in service was ordered to be treated as duty or not at the time of finalization of the departmental inquiry contemplated against him. Later on, a departmental inquiry was ordered against him, vide order dated 26.03.2008.
5. Meanwhile, the criminal proceedings going on against him ended in his conviction by the Special Judge, Delhi vide his judgement dated 27.01.2011. Vide Order dated 29.01.2011, he was also sentenced u/s 7 of the Prevention of Corruption Act, 1988 to undergo Rigorous Imprisonment for a period of two years and to pay a fine of Rs.3000/-, and in default to undergo simple imprisonment for a period of two more months. He was also sentenced u/s 13(2) of the Prevention of Corruption Act, 1988 to undergo Rigorous Imprisonment for a period of two years and a fine of Rs.3000/- and in default of payment of fine to further undergo simple imprisonment for a period of two more months.
6. Against the said conviction and sentence, the applicant filed Criminal Appeal No.295/2011 and Bail Application No.382/2011 before the Honble High Court of Delhi. The High Court, vide its order dated 10.03.2011, issued notice in the appeal and fixed it for hearing on 11.08.2011 but dismissed the Bail Application thereby declining the request to suspend the sentence. The Special Leave Petition (Criminal) No.2403/2011 filed by the applicant against the aforesaid order of the High Court was also dismissed. Consequently, the applicant surrendered himself before the Trial Court on 21.03.2011 and he was sent to the Central Jail No.5, Tihar, New Delhi.
7. While the applicant was undergoing the imprisonment, the respondents, vide impugned order dated 23.05.2011, dismissed him from service in terms of Article 311(2)(a) of the Constitution with immediate effect as his further retention in police department was found to be prejudicial to the public interest. His suspension from 09.09.2006 to the date of issuance of the order was also decided as period not spent on duty for all intents and purposes. The appeal filed by him against the aforesaid order of the disciplinary authority was also dismissed by the appellate authority, vide its impugned order dated 09.09.2011. While passing the aforesaid orders, both the disciplinary authority as well as the appellate authority relied upon the majority Order of this Tribunal in OA No.544/2006 - Brij Pal Singh v. Govt. of NCT of Delhi and other connected cases decided by a coordinate Bench of this Tribunal on 30.07.2007. The main contention of the applicant therein was that the order of his dismissal from service was passed ignoring the proviso to Rule 11(1) of the Delhi Police (Punishment & Appeal) Rules, 1980 which reads as under:-
Rule 11 (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 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. (Emphasis given by the Tribunal)
8. The applicant has filed this OA challenging the aforesaid order of the disciplinary authority dated 23.05.2011 and the appellate authoritys order dated 09.09.2011, seeking the following reliefs:
i) to set aside the impugned orders dated 23.5.11 at A-1 and dated 9.9.2011 at A-2 and to further direct the respondents to reinstate the applicant in service with all consequential benefits including seniority and promotion and pay and allowances.
ii) any other relief which this Court deems fit and proper may also be awarded to the applicant.
10. His challenge to the aforesaid impugned orders is also mainly on the ground that the disciplinary authority as well as the appellate authority has passed the impugned orders without applying their mind on Rule 11(1) of the Delhi Police (Punishment & Appeal) Rules, 1980 and the Judgement of this Tribunal in the case of Brij Pal Singh (supra) as upheld by the Honble High Court of Delhi on 04.12.2008 in Writ Petition (Civil) No.1044/2008 and other connected matters. In the said case, according to the applicant, what the High Court stated is that even if the sentence is not suspended, the benefit of Rule 11 cannot be taken away from the applicant. The applicant has also submitted that the suspension of the sentence has nothing to do with Rule 11(1) of the Delhi Police (Punishment & Appeal) Rules, 1980 wherein it has been stated that the concerned police officials cannot be dismissed or removed from service till such time the result of first appeal that have been filed by the said police officer is know. In other words, he contended that what is relevant is the pendency of the first appeal in the High Court and not the suspension or sentence or otherwise. The relevant part of the said order of this Tribunal in Brij Pal Singhs case (supra) is reproduced as under:
52. Rules in the present case are not silent on the issue as to what is to be done if a Police personnel is convicted in a criminal case. It is a basic principle of law that if the manner to do a particular work is prescribed in any statute, as argued by one of the counsels of the applicants, the act must be done in that manner only [Chander Kishore Jha v. Mahavir Prasad & Ors. (supra); Babu Verghese & Ors. v. Bar Council of Kerala & Ors., 1999 (3) SCC 422; and State of Uttar Pradesh v. Singhara Singh & Ors., AIR 1964 SC 358]. It, therefore, cannot be left to the discretion of administrative authorities to decide as to which rule should be followed and which need not be followed.
53. In view of the propositions mentioned above, I do not agree with the contention of the learned Additional Solicitor General that the impugned Circular dated 09.12.2005 has the power of a rule. As a matter of fact, insofar as the said Circular was issued without obtaining the approval of the Administrator/Lieutenant Governor and was neither published in the Official Gazette nor laid before each House of Parliament, it does not qualify even to be a Regulation in terms of Section 19 of the Act of 1978. The order of this Tribunal in the case of Head Constable Rajpal Singh & Ors. etc. etc. v. Union of India & Ors. (supra) is of little assistance to the respondents insofar as there are other infirmities aforementioned, particularly the absence of approval of the Administrator/Lieutenant Governor, in the present case. It is also noticed that the judgments of the Honble Supreme court in the cases of S. Nagoor Meera (supra) and K.C. Sareen (supra) were pronounced on 24.02.1995 and 02.08.2001 respectively. Both the judgments were also reported in the year in which they were pronounced. The impugned Circular was issued much later, i.e. more than 10 years later, as far as the case of S. Nagoor Meera (supra) is concerned. There was ample time available to respondent no. 2 to get the Rules of 1980 amended appropriately if he was in a position to convince the competent authority to do so. It is upto the rule making authority to take a view in the matter, if so advised, whether a particular Rule should continue to be on the statute book or it should be taken off it, if the current situation so demands, since there is indeed a shelf life of everything. However, administrative authority, under no circumstances, can abrogate to itself the power conferred on the legislature or the executive by the Constitution of India. The impugned Circular, therefore, appears to be a knee-jerk reaction, albeit with salutary intentions, to solve the perennial problem that has been plaguing the police force for quite sometime, namely, rampant corruption in the lower ranks. In this context, I can do no better than to quote the following obiter from the order of this Tribunal in the case of Head Constable Suresh Kumar v. Govt. of N.C.T.D. & Ors. (OA No. 2500/2006, decided on 05.06.2007), which was recorded in the context of another series of administrative decisions relating to dismissal of police personnel of Delhi Police under Article 311 (2)(b):
20. Before parting with this case, we are constrained to observe that on several occasions this Tribunal has quashed or set aside similar orders dismissing employees while dispensing with the departmental enquiry under Article 311(2)(b). The particulars of some of the cases have been provided in the foregoing paragraphs of this order. The dockets of this Tribunal are over-brimming with similar cases. Despite the fact that law stands well entrenched up to the highest Court of the land, the respondents would persist with order of dismissal primarily looking at the grave nature of acts of omissions and commission alleged against a delinquent. That alone, or at the most, coupled with previous background of the delinquent, is a ground considered sufficient to dispense with the enquiry. While so observing, the authorities do not even keep in mind involvement of a delinquent in a criminal case where witnesses who support the allegations may be police officers or officials who would not normally deviate from their duties by messing up or shielding the culprits. This Tribunal is equally concerned, as the respondents may be, when allegations of a serious nature come to be made against the men in uniform, who are supposed to protect a citizen rather than intimidating or extracting illegal benefits from him. But once it has been held that enquiry can be dispensed with only on cogent grounds specifying reasons for such dispensation, the law must take its course. Nobody can be a law unto himself in a country where rule of law prevails. Individual thinking of even the highest officer in the hierarchy is no substitute for law. We may further mention that the course as adopted by the respondents in the present case has rather helped the police officers or officials, who may deserve no sympathy whatsoever. Almost in every such case, order of dismissal has been set aside by this Tribunal and confirmed by the High Courts and the Supreme Court. The respondents, after setting aside of such orders, would ordinarily deal with such persons by holding a regular departmental enquiry. In the interregnum, number of years would roll by, and on setting aside of the orders, the delinquent would only be benefited as he shall not only be reinstated but paid all back wages. The course adopted by the respondents, in our considered view, is counter-productive and leads to unnecessary and avoidable litigation. It amounts to waste of public money and time. In the circumstances as mentioned above, we direct the Commissioner of Police, respondent No.1, to place a copy of this order before the Honble Lt. Governor of Delhi who may be pleased to suggest alternative and remedial measures, which may achieve the objective of eradicating ills in the society, particularly when the same are committed by men in uniform, without resorting to inappropriate remedy attempted in the present case and other similar cases.
54. I do not find merit in the contention of the learned Additional Solicitor General that the word `result used in the proviso to Rule 11(1) of Rules of 1980 refers to interlocutory orders of the Court. The result of an appeal, in my view, is definitely its final outcome.
55. I find merit in the contention of some of the counsels for applicants that ignoring statutory provisions can never be in public interest.
56. It has also been rightly contended that this Tribunal cannot issue any direction to the respondents to amend Rule 11(1) of Rules of 1980 by deleting its proviso. It is entirely beyond the scope of the power of judicial review exercisable by this Tribunal.
ANSWER TO THE REFERENCE
57. From a conjoint reading of the two sets of Points of Difference addressed to me, I find that the following points need to be answered:-
Whether in view of the judgments of the Apex Court in the cases of Deputy Director of Collegiate Education (Administration), Madras Vs. S. Nagoor Meera, AIR 1995 SC 1364 and K.C. Sareen Vs. CBI, 2001 (6) SCC 584, proviso in Rule 11(1) of The Delhi Police (Punishment & Appeal) Rules, 1980 can be said to have become defunct and has, therefore, to be ignored in view of Article 141 of the Constitution of India?
Whether Circular dated 09.12.2005 can be upheld on the ground that it serves bona fide public interest, even though it is not in consonance with the provisions of Rule 11(1) of The Delhi Police (Punishment & Appeal) Rules, 1980?
Whether without deleting proviso to Rule 11(1) of The Delhi Police (Punishment & Appeal) Rules, 1980 from the statute book, the executive authority had the liberty to treat the Rule as one not in existence?
Whether this Tribunal can give a direction to the Government in the Ministry of Home Affairs to delete the proviso in Rule 11(1) of The Delhi Police (Punishment & Appeal) Rules, 1980?
58. In view of the findings aforementioned, I answer the reference as follows:-
Proviso in Rule 11(1) of The Delhi Police (Punishment & Appeal) Rules, 1980 has not become defunct on account of the judgments of the Apex Court in the cases of Deputy Director of Collegiate Education (Administration), Madras Vs. S. Nagoor Meera, AIR 1995 SC 1364) and K.C. Sareen Vs. CBI (2001 (6) SCC 584), in view of Article 141 of the Constitution of India. It, therefore, cannot be ignored.
Circular dated 09.12.2005 cannot be upheld on the ground that it serves bona fide public interest.
Executive authority is not at liberty to treat the proviso in Rule 11(1) of The Delhi Police (Punishment & Appeal) Rules, 1980 as not in existence, without deleting it from the statute book.
This Tribunal cannot give any direction to Government to delete the proviso in Rule 11(1) of The Delhi Police (Punishment & Appeal) Rules, 1980.
59. In conclusion, therefore, I am in agreement with the order of Mr. Justice M. Ramachandran, Vice-Chairman (J), delivered in the OAs on 09.03.2007. The applicants are, therefore, entitled to relief in terms of para nos. 20 & 21 of the said order of the Vice Chairman (J).
11. The Honble High Court of Delhi, vide its Judgement in WP(C) No.1044/2008 Commissioner of Police v. Shri Brij Pal Singh and other connected cases, decided on 04.12.2008 dismissed the case of the respondents and upheld the aforesaid order of this Tribunal as perfectly in order. The relevant part of the High Court Judgement is as under:-
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/-.
12. The respondents filed their reply stating the aforesaid factual position, once again they have reiterated that since the applicant was to undergo the actual imprisonment as his sentence was not suspended, in view of the Judgement in the matter of Brij Pal v. Government of NCT of Delhi (supra), the applicant is liable to be dismissed from service. They have also justified that the order passed under Article 311(2)(a) of the Constitution of India, as the same, according to them, is not barred merely because the sentence has been subsequently suspended by the appellate Court and/or the said government servant/accused has been released on bail. According to them, the Apex Court does not speak about sentence or punishment, rather as held by it in Civil Appeal No.2992/1995 in the matter of Deputy Director of Collegiate Education (Administration) Madras v. S.Nagoor Meera, what is relevant for Clause (a) of the second proviso to Article 311(2) is the conduct which was led to the conviction on a criminal charge. Further, the Apex Court has observed therein that even if an appellate Court suspended the order, there can be no question of suspending the conduct.
13. We have heard the learned counsel for the applicant Shri Sachin Chauhan and the learned counsel for the respondents Shri N.K.Singh proxy of Mrs. Avnish Ahlawat and have gone through the pleadings on record. It is seen that both the disciplinary authority as well as the appellate authority misconceived the order of this Tribunal in Brij Pal Sings case (supra). They have not considered the order of Shri V.K.Agnihotri, Honble Member (A) agreeing with the order of Honble Shri Justice M.Ramachandran as upheld by the Honble High Court of Delhi vide its Judgement dated 4.12.2008. A coordinate Bench of this Tribunal again considered the very same issue in OA No.3898/2010 Sher Singh v. Govt. of NCT of Delhi & Others and decided on 08.04.2011. Applicant therein challenged order dated 10.10.2008 whereby he has been dismissed from service in view of his conviction in the criminal case and the order dated 1.12.2009, his appeal has been rejected. He has further sought a direction to the respondents to reinstate him in service with all consequential benefits. He submitted that he was convicted under Section 304 IPC in the year 2004 in a criminal case. In view of above, he was suspended on 6.1.2004. The order of conviction was challenged by the applicant therein in the Honble High Court of Delhi in which appeal was admitted and his sentence was suspended. The appeal is still pending which is evident from order dated 8.3.2004. However, the respondents have issued a circular in the year 2005 which was contrary to Rule 11(1) of Delhi Police (Punishment and Appeal) Rules, 1980. On the basis of the said circular, even though his appeal was still pending in the Honble High Court of Delhi, applicant was dismissed from service vide order dated 10.10.2008 and his appeal was also rejected vide order dated 1.12.2009. Being aggrieved, he had given a representation to the Commissioner of Police, which too was dismissed on the ground that Rule 25 of Delhi Police (Punishment and Appeal Amendment) Rules, 1994 had been held to be ultra vires and, therefore, revision was not maintainable. He further submitted that his case was fully covered by the judgment given by this Tribunal dated 12.3.2010 in OA No. 2919/2009, order dated 26.5.2010 in OA No. 3731/209 and judgment dated 4.12.2008 given by Honble High Court of Delhi in Writ Petition (Civil) No.1044 of 2008 and connected matters. Allowing the said OA, this Tribunal held as under:
6. We have heard applicant, who appeared in person and counsel for the respondents and perused the pleadings as well.
7. Admittedly, applicant along with three other persons including Constable Anil Kumar were tried in a criminal case for allegedly giving beatings to the individual Shri Jagan Nath who was brought in the PS Lahori Gate. The applicant along with other persons were convicted for the offence under Section 304 Part-II IPC and sentenced to imprisonment for 5 years in addition to fine of Rs.50,000/-, whereas Anil Kumar (Constable) was convicted under Section 302 of the Constitution. They challenged their conviction and sentence before the Honble High Court. Their appeal was admitted and sentence was suspended. Applicant was also admitted to bail pending disposal of the appeal on his furnishing personal bond for Rs.25,000/- with one surety in the like amount to the satisfaction of the learned Trial Court by order dated 8.3.2004 (page 112). It is thus clear that the appeal of applicant was and is stated to be still pending in the Honble High Court of Delhi.
8. Respondents dismissed the applicant vide order dated 10.10.2008 on the basis of his conviction by invoking Article 311 (2)(a) of the Constitution by referring to the judgment of Honble Supreme Court in the case of S. Nagoor Meera (supra).
9. The question before us is whether such kind of dismissal is sustainable in law or not. The question need not detain us for long because it has already been discussed at length and decided in batch of matters in the case of Brij Pal Singh Vs. Govt. of NCT and Other connected matters (OA Nos. 546/2006 with other connected OAs) wherein circular dated 9.12.2005 issued by Delhi Police was quashed and set aside and it was held since there is a specific provision Rule 11 (1) in Delhi Police (Punishment & Appeal) Rules, 1980 which reads as under:-
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. therefore, even if a person is convicted in a criminal court, the police officers could not have been dismissed from service in case the criminal appeal against conviction is still pending in the Honble High Court. It was also held by the Tribunal that the decision rendered by the Honble Supreme court was not at all applicable to the facts of the case because in that judgment there was no statutory bar like Rule 11 (1) of Delhi Police (Punishment & Appeal) Rules, 1980, therefore, all the applicants before it would be deemed as continuing under suspension throughout excluding those applicants who were undergoing imprisonment. Thus the OAs were allowed.
10. The above said judgment was challenged by the respondents before Honble High Court of Delhi by filing Writ Petition No. 1044/2008 wherein the specific issue considered was whether notwithstanding the proviso to Rule 11 (1) of the Delhi Police (Punishment & Appeal) Rules, 1980, a police officer can be dismissed or removed from service during the pendency of a first appeal against an order of conviction and sentence. The Honble High Court referred to the Circular dated 9.12.2005 as also the judgment of Honble Supreme Court in the case of Deputy Director of Collegiate Education (Administration), Madras Vs. S. Nagoor Meera (supra) and observed as follows:-
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.
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 because 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.
11. It was further observed as follows:-
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.
12. After holding that Rule 11 (1) of Delhi Police (Punishment & Appeal) Rules, 1980, has to prevail, the question posed by the respondent herein as to what is the petitioner expected to do until the decision is rendered in the first appeal, was answered by the Honble High Court as follows:-
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.
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.
13. The Writ Petition was accordingly dismissed with cost of Rs.1000/- to be paid to each of the respondents. It is thus clear that the issue in this case is no longer res integra. Moreover, the co-delinquent of applicant, namely, Constable Anil Kumar, who was, in fact, alleged to have brought Jagan Nath in the PS and given beatings was also dismissed. He had challenged his order of dismissal by filing OA No.1692/2007 which was allowed vide order dated 23.12.2008. In fact, it would be purposeful to quote the order dated 26.2.2009 which was passed by the respondents after his OA was allowed:-
In pursuance of the judgment dated 23.12.2008 passed by the Honble Central Administrative Tribunal in O.A. No.1692/2007, MA No.2077/2008 - Ex. Const. Anil Kumar, No.2107/PCR Vs. GNCT of Delhi as well as in pursuance of PHQs endst. No. 1138/CR-I/PHQ dated 12.2.2009, conveyed vide memo. No.1177-1214/P. Cell/Vig./P-III dated 19.2.2009, the order of the Disciplinary Authority imposing the punishment of dismissal under Article-311 (2) (a) of the Constitution of India vide order No.15978-16077/HAP(P-IV)/PCR dated 24.11.2006 and order of the Appellate Authority rejecting his appeal against the punishment of dismissal vide order No.219-20/I/C Appeals/Addl.C.P./P&C dated 28.3.2007 are hereby quashed and set aside. Ex. Const. Anil Kumar, No.2107/PCR (PIS No.28881094) is hereby reinstated in service from dismissal with immediate effect subject to the final outcome of 1st appeal against the conviction in the Honble High Court, Delhi. His suspension period from 7.12.1991 to 2.5.1993 will be decided later on. However, he will be deemed to be under suspension from the date of dismissal i.e. 24.11.2006.
Let the Constable be informed accordingly.
14. We have already noted above that Constable Anil Kumar was the person who is alleged to have brought Jagan Nath in PS and given beatings to him. If his order of dismissal has been set aside and he has been reinstated and put under deemed suspension, applicant is entitled to the same benefit.
15. In view of above, the impugned orders dated 10.10.2008 and 1.12.2009 are quashed and set aside. Respondents are directed to reinstate the applicant in service with immediate effect and put him under deemed suspension as has been done in the case of Constable Anil Kumar. No costs.
14. Again a coordinate Bench of this Tribunal has discussed the very same issue recently in OA 1042/2011 Raj Pal Singh v. Govt. of NCT of Delhi & Others, and decided on 09.01.2012. The relevant part is extracted below:
2. The brief background of the case is that the applicant, while working as Assistant Sub Inspector with respondents, was involved in a criminal case filed vide FIR No.108/99. He was convicted in the aforesaid case. Against the said judgment he has filed a criminal appeal No.401-407/2005 before the Honble High Court of Delhi and the same is still pending. He was also involved in another criminal case filed vide FIR No.34/2000 and he was placed under suspension w.e.f. 9.4.2000. In the said criminal case also he was convicted against which he had filed criminal appeal No.114/05 before the High Court of Delhi and the same is also pending for final adjudication. In view of the conviction in the aforesaid two cases, the respondents have dismissed him from service vide order dated 6.6.2008. Appeal filed against the same was also rejected vide order dated 28.7.2008. Against those orders of the disciplinary authority and the appellate authority, he had earlier approached this Tribunal in OA-1780/2008 and the same was allowed vide order dated 22.12.2008. The said order was also upheld by the Honble High Court of Delhi in Commissioner of Police vs. Brij Pal Singh, 155 (2008) DLT 115. Thereafter the respondents vide order dated 17.2.2009 reinstated the applicant but placed him under continued suspension. It was in the above background that the respondents have issued the impugned orders dated 17.9.2010 to hold a regular departmental enquiry against the applicant. The enquiry officer has also issued the summary of allegations against him vide letter dated 1.11.2010.
3. The applicant challenged the aforesaid impugned order on the ground that the respondents had only two options left with them, first to wait for the decision of the pending criminal appeal as per rule 11 (1) of the Delhi Police (Punishment and Appeal) Rules, 1980 according to which, 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 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. The second option available with the respondents was to initiate the departmental enquiry proceedings in terms of rule 11 (3) ibid which says that 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. According to the learned counsel for the applicant, in terms of the aforesaid rule, the respondents ought to have first consider the dismissal/removal of the applicant on conviction was not necessary before initiating any disciplinary proceedings against him. Since no such decision has been taken, the impugned order is violative of the aforesaid provisions and has to be quashed and set aside.
4. The respondents have filed their reply but they have not disputed the aforesaid factual position. However, they have submitted that there is no infirmity in the impugned order to proceed against the applicant departmentally as he had committed gross misconduct and act which makes him unbecoming of a police officer which render him liable to be dealt with under the provisions of Delhi Police (Punishment and Appeal) Rules, 1980.
5. We have heard the learned counsel for the parties. We fully agree with the counsel for the applicant Sh. Anil Singal. The rule 11 (3) of the rules ibid can be invoked only if the competent authority takes a decision first that the alleged misconduct of the applicant does not warrant dismissal or removal from service. In other words, once the applicant has been punished on judicial conviction and his first appeal is pending disposal, the disciplinary authority cannot dismiss him or remove him from service after holding a departmental enquiry against him. As the respondents have not taken any decision that the alleged misconduct committed by the applicant does not warrant his dismissal or removal from service, to proceed against him departmentally is illegal and wrong. In view of the above position, we allow this OA. Consequently, the impugned Annexure A-1 order dated 17.9.2010 ordering regular departmental enquiry against the applicant is quashed and set aside. However, the respondents are at liberty to proceed against the applicant as per law, if so advised. We may also make it clear that nothing said in this order shall be construed as an expression of our opinion as regards the merit of this case is concerned. There shall be no order as to costs.
15. In the present case, the only difference is that the sentence awarded to the applicant by the criminal Court has not been stayed by the High Court. Therefore, the contention of the respondents is that since the applicant has been undergoing imprisonment due to the fact that his sentence has not been suspended, they are fully justified in dismissing him from service under Clause (a) of the second proviso to Article 311(2). In our considered opinion, the aforesaid view taken by the respondents is misconceived and it is not based on any legal provision or on the basis of the law lay down by the Apex Court in any of the cases. Rather the object and purpose of Rule 11 of Delhi Police (Punishment & Appeal) Rules, 1980 is that a police official shall not be dismissed from service till the judgement of the criminal Court is considered and decided by the High Court in appeal. In some cases, depending upon the gravity of the charge, the High Court may suspend the sentence while admitting the criminal appeal. In other cases, the accused will have to undergo the imprisonment during the pendency of the appeal. Even in cases, where sentences are not suspended, ultimately the appellant may succeed in his appeal. Therefore, suspension of appeal is not the basic criteria in the matter. What is provided in the Rule 11(1) of the Delhi Police (Punishment & Appeal) Rules is that the services of a police official cannot be dismissed during the pendency of the appeal. Therefore, we do not find any merit in the submissions of the respondents that just because the High Court, after admitting the appeal against the order of the criminal Court has not suspended the sentence awarded against the applicant and he is undergoing imprisonment, the applicability of the proviso to Rule 11(1) of the Delhi Police (Punishment & Appeal) Rules, 1980 is ousted. In fact, in the light of the aforesaid provisions, the respondents ought to have waited till the appeal filed against the judgement of the criminal court is finally decided. We, therefore, quash and set aside the impugned order of the disciplinary authority dated 23.05.2011 dismissing the applicant from his service. Consequently, the appellate authoritys order dated 09.09.2011 also should go. However, since the applicants sentence has not been suspended by the High Court and he had to undergo imprisonment, there is no question of reinstating him in service during the pendency of the appeal. We, therefore, direct that the applicant shall deemed to be continuing under suspension from the date of his dismissal from service, with consequential benefits. The respondents shall consequently pass appropriate orders reinstating the applicant in service from the date he has been dismissed. The aforesaid directions shall be complied with within a period of two months from the date of receipt of a copy of this order. Accordingly, this OA is allowed. There shall be no order as to costs.
16. Before we part with this, we would say that Rule 11(1) of the Delhi Police (Punishment & Appeal) Rules, 1980 has since been amended vide Delhi Police (Punishment & Appeal) [Amendment] Rules, 2011 thereby removing the proviso contained therein and brought that rule in consonance with Article 311(2)(b) of the Constitution. The amended rule reads as under:
Rule 11 (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. However, the said amendment having been taken place only on 30.11.2011 and it will have only prospective effect, the original order of dismissal of the applicant from service dated 09.09.2006 under Article 311(2)(b) of the Constitution will not come under its purview. The aforesaid position has also been clarified by the counsel for parties on 05.12.2012, on the date on which this case was again kept for `being spoken to.
(Mrs. Manjulika Gautam) (G. George Paracken) Member (A) Member (J) /nsnrgp/