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High Court of Delhi
THE HONOURABLE MR. JUSTICE PRADEEP NANDRAJOG, THE HONOURABLE MR. JUSTICE V.K. JAIN & THE HONOURABLE MR. JUSTICE V. KAMESWAR RAO
The Commissioner of Police & Others
Versus
Sukhbir Singh & Others
W.P.(C) Nos. 1956 of 2013 & 7577 of 2012
Decided On : 06-01-2014
Whether Rule 11(1) of the Delhi Police (Punishment & Appeal) Rules, 1980 is ultra vires Article 311(2) of the Constitution of India? Whether notwithstanding Rule 11(1) of the Delhi Police (Punishment & Appeal) Rules, 1980 a Delhi Police personnel who has been convicted at a criminal trial can be dismissed, removed or compulsory retired after dispensing with an inquiry with reference to the conduct which has led to his conviction?
Fact of the Case:
Sukhibir Singh, a Delhi Police personnel, was convicted in a criminal trial and sentenced to two years of rigorous imprisonment and a fine of Rs. 3,000. While his appeal against the conviction was pending, he was dismissed from service under Article 311(2)(b) of the Constitution of India. He challenged his dismissal before the Central Administrative Tribunal, which allowed his petition and reinstated him in service. The Delhi Police Commissioner filed a writ petition in the Delhi High Court challenging the Tribunal's order. Ajay Kumar Bhardwaj, an employee of the Delhi Transport Corporation (DTC), was also convicted in a criminal trial and dismissed from service without an inquiry under a provision of the DTC's executive instructions. He challenged his dismissal before the Tribunal, which dismissed his petition. He filed a writ petition in the High Court challenging the Tribunal's order.
Finding of the Court:
The High Court held that Rule 11(1) of the Delhi Police (Punishment & Appeal) Rules, 1980, which provides that no order of dismissal or removal from service shall be passed against a police officer until the result of the first appeal filed by him against his conviction is known, is ultra vires Article 311(2) of the Constitution of India. The Court held that Article 311(2)(a) of the Constitution permits the dismissal or removal of a government servant without an inquiry only if the conduct that led to the conviction warrants such a penalty. The Court held that Rule 11(1) impermissibly restricts the exercise of this power by requiring the disciplinary authority to wait for the outcome of the appeal before taking action. The Court also held that the provision in the DTC's executive instructions, which allowed for the dismissal of an employee without an inquiry after a criminal conviction, was also ultra vires Article 311(2) of the Constitution.
Issues: Whether Rule 11(1) of the Delhi Police (Punishment & Appeal) Rules, 1980 is ultra vires Article 311(2) of the Constitution of India? Whether notwithstanding Rule 11(1) of the Delhi Police (Punishment & Appeal) Rules, 1980 a Delhi Police personnel who has been convicted at a criminal trial can be dismissed, removed or compulsory retired after dispensing with an inquiry with reference to the conduct which has led to his conviction?
Ratio Decidendi: The Court held that Rule 11(1) of the Delhi Police (Punishment & Appeal) Rules, 1980 is ultra vires Article 311(2) of the Constitution of India because it impermissibly restricts the exercise of the power to dismiss or remove a government servant without an inquiry. The Court held that Article 311(2)(a) of the Constitution permits the dismissal or removal of a government servant without an inquiry only if the conduct that led to the conviction warrants such a penalty. The Court held that Rule 11(1) impermissibly restricts the exercise of this power by requiring the disciplinary authority to wait for the outcome of the appeal before taking action.
Final Decision: The Court held that Rule 11(1) of the Delhi Police (Punishment & Appeal) Rules, 1980 is ultra vires Article 311(2) of the Constitution of India. The Court also held that the provision in the DTC's executive instructions, which allowed for the dismissal of an employee without an inquiry after a criminal conviction, was also ultra vires Article 311(2) of the Constitution.
V. Kameswar Rao, J.
1. Rule 11 of the Delhi Police (Punishment & Appeal) Rules, 1980 reads as under:-
“Rule 11.Punishment on judicial conviction.-
(1) When a report is received from an official source, e.g. a court or the prosecution agency, that a subordinate rank has been convicted in a criminal court of an offence, involving moral turpitude or on charge of disorderly conduct in a state of drunkenness or in any criminal case, the disciplinary authority shall consider the nature and gravity of the offence and if in its opinion that the offence is such as would render further retention of the convicted police officer in service, prima facie undesirable, it may forthwith make an order dismissing or removing him from service without calling upon him to show cause against the proposed action provided that no such order shall be passed till such time the result of the first appeal that may have been filed by such police officer is known.
(2) If such police officer is acquitted on second appeal or revision, he shall be reinstated in service from the date of dismissal or removal and may be proceeded against departmentally.
(3) In cases where the dismissal or removal from service of the convicted police officer is not considered necessary, the disciplinary authority may examine the judgment and take such departmental action as it may deem proper.
(4) When a police officer is convicted judicially and consequently dismissed or removed from service, and it is desired to ensure that the officer dismissed or removed shall not be re-employed elsewhere, a full descriptive roll with particulars of punishments, shall be sent for publication in the Delhi Police Gazette.”
2. No argument being advanced whether the word ‘shall’occurring in the phrase ‘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’ should be read as mandatory or directory i.e. ‘may’, and on the premise that the word ‘shall’was to be read as mandatory, in the decision reported as 155 (2008) DLT 115 Commissioner of Police vs. Brij Pal Singh, a Division Bench of this Court held that pending decision of the appeal against an order of conviction a police personnel governed by the Delhi Police (Punishment & Appeal) Rules, 1980 could not be proceeded against in exercise of the power conferred by Rule 11 of the Delhi Police (Punishment & Appeal) Rules, 1980.
3. Vide order dated July 15, 2013 passed in WP(C) 1956/2013, noting that in Brij Pal’s case the majority view of the Constitution Bench decision reported as AIR 1985 SC 1416 Union of India vs. Tulsi Ram Patel was not noted, a reference was made to a Full Bench. The order of reference dated July 15, 2013 reads as under:-
“1. Interpreting Rule 11(1) of the Delhi Police (Punishment & Appeal) Rules, 1980, in the decision reported as 155 (2008) DLT 115 Commissioner of Police vs. Brij Pal Singh a Division Bench of this Court held that power under said Rule can be exercised by dispensing with an inquiry but before a convicted Delhi Police personnel files an appeal challenging his conviction.
2. Attention of the Division Bench was not drawn to the Constitution Bench decision of the Supreme Court reported as AIR 1985, SC 1416 Union of India vs.Tulsiram Patel. Observations of the majority view in Tulsiram Patel’s case and especially in paragraph 44, 50, 51 and 54 thereof would reveal that the majority view took into account Article 309 of the Constitution of India as also Articles 310 and 311.
3. The majority view observed that the source of legislative power to legislate with respect to recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State under Article 309 of the Constitution of India is subject to the provisions of the Constitution.
4. The question of law which would arise would be: Whether Rule 11(1) of the Delhi Police (Punishment & Appeal) Rules, 19
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