Joint Commissioner Of Police And ... vs Sube Singh And Ors.
2002 Latest Caselaw 673 Del

JUDGMENT

S.B. Sinha, C.J.

1. Whether Joint Commissioner of Police can be a disciplinary authority of the respondents of the writ petitions, is the question involved in this batch of writ petitions which arise out of judgment and orders passed by the Central Administrative Tribunal in several writ petitions. As identical questions are involved in these writ petitions, the factual matrix of the matter would be noticed from CW 6689/2001.

2. Delhi Police Force is constituted in terms of Delhi Police Act, 1978. Cadre strength of its senior officer is fixed at 49 by the Central Government through Ministry of Home Affairs since 1995. The cadre strength of the senior officers includes Commissioner of Police, Senior Additional Commissioner of Police, Deputy Commissioner of Police and Additional Deputy Commissioner of Police. Their scales of pay are prescribed by the State. The Commissioner of Police is in the highest scale of pay whereas the Senior Additional Commissioner of Police, Additional Commissioner of Police and Deputy Commissioner of Police are lower. A notification was issued on 3rd March 1998 by the Central Government in terms of the provisions of the All India Services Act, 1951 and Indian Police Service (Fixation of Cadre Strength) Regulations, 1955 prescribing different posts of the grades of Commissioners, Special Commissioners, Joint Commissioners, Additional Commissioners and Additional Deputy Commissioners of Delhi Police with the same total strength. Till 1998, however, there was no post of the grade or rank of Joint Commissioner in the Delhi Police Force.

3. The post of Joint Commissioner of Police was created by way of upgradation of the pay scale of the Additional Commissioner of Police with a higher pay scale.

4. Disciplinary proceedings had been initiated by the Commissioner of Police against the respondents herein. They did not question the jurisdiction of the Joint Commissioner of Police to initiate such proceedings during the departmental proceedings. However, they filed Original Applications before the Tribunal, wherein the jurisdiction of the Joint Commissioner of Police to pass the orders of punishment dated 29th September 1999 imposing a penalty of forfeiture of approved service of one year and treating the said period of suspension as 'not spent on duty', was questioned.

5. The charge against the respondents was that they had demanded bribe.

6. The learned Tribunal by reason of the impugned judgments, upon analysing the provisions of Delhi Police Act, 1978 and Delhi Police (Punishment and Appeal) Rules, 1980, inter alia, held that in the absence of any notification issued by the Administrator, the Joint Commissioner of Police could not have been empowered to initiate any departmental proceedings against the respondents concerned.

7. The contention raised on behalf of the petitioners herein is to the effect that the said post of Joint Commissioner of Police was created by upgrading the post of Additional Commissioner but, it was held even a higher authority (which power has been conferred upon by the higher statutory authorities by some statutes for example Customs Act, 1962 or Central Excise Rules), the Joint Commissioner could not exercise the power of the disciplinary authority.

8. Mr. Maninder Singh, learned counsel appearing on behalf of the petitioners, inter alia would urge that the learned Tribunal committed a serious error in so far as it failed to take into consideration that the appointing authority in relation to Inspector of Police, would not only mean Additional Commissioner of Police or any other officer of equal rank. The learned counsel would contend that it is not a case where the disciplinary power had been exercised by a higher authority as a result whereof the right of the appellant to prefer appeal thereagainst has been taken away and thus the orders impugned before the Tribunal Could not be held to be bad in law.

9. Mr. George Paracken, the learned counsel appearing on behalf of the petitioners in some of the writ petitions, would adopt the same argument and would further submit that by reason of Section 21 of the Delhi Police Act, the power of control vests in the officers of the Police which would, having regard to the upgradation of the post of Additional Commissioner, must also be held to have been vested in the Joint Commissioner of Police.

10. The learned counsel for the respondents, on the other hand, would submit that having regard to the fact that no notification in terms of Section 5 of the Act has been issued by the Lieutenant Governor, the impugned orders of punishment cannot be held to be sustainable in law.

11. It was contended that upgradation of the post would amount to creation of a post. Such a post must be created in accordance with the provisions of the Delhi Police Act and the Rules framed there under and as no notification has been issued empowering the Joint Commissioner delegating the power of a statutory authority, the impugned order cannot be said to be bad in law.

12. It was further contended the Tribunal's orders in various cases had been implemented. Delhi Police Act, 1978 was enacted to amend the law relating to regulation of police in the Union Territory of Delhi. "Delhi Police" or "police force" has been defined in Section 2(g) to mean:

"2. In this Act, unless the context otherwise requires,--

(a) to (f) xxxxx

(g). "Delhi Police" or "police force" means the police force referred to in Section 3 and includes-

(i) all person appointed as special police officers under Sub-section (1) of Section 17 and additional police officers appointed under Section 18; and

(ii) all other persons, by whatever name known, who exercise any police function in any part of Delhi;"

13. Section 2(m) defines "police officer" as any member of the Delhi Police. Section 3 provides for constitution of police force for the whole of Delhi Section 4 provides that the superintendence of Delhi Police throughout Delhi shall vest in and be exercisable by the Administrator and any control, direction or supervision exercisable by any officer over any member of the police force shall be exercisable subject to such superintendence. Section 5 provides for constitution of police force, which is in the following terms:

"5. Constitution of police force. --Subject to the provisions of this Act.-

(a) the Delhi police shall consist of such number in the several ranks and have such organization and such powers, functions and duties as the Administrator may, by general or special order, determine; and

(b) the recruitment to, and the pay, allowances and all other conditions of service of the members of, the Delhi police shall be such as may be prescribed:

Provided that nothing in Clause (b) shall apply to the recruitment to, and the pay, allowance and other conditions of service of the members of the Indian Police Service or the Delhi, Andaman and Nicobar Island Police Service."

14. By reason of Section 6 of the Act, Commissioner of Police is authorised to exercise and perform such powers and duties as are specified under the Act. Section 7 and 8 read thus:

"7. Additional Commissioner of Police. -- (1) The Administrator may appoint one or more Additional Commissioner of Police for the purposes of this Act.

(2) The Additional Commissioner of Police shall-

(a) assist the Commissioner of Police in the exercise of his powers and the performance of his duties in such manner and to such extent, and

(b) exercise such powers and perform such duties of the Commissioner of Police and within such local limits,

as the Administrator may, by general or special order, specify,

8. Deputy, Additional Deputy and Assistant Commissioners of Police. --(1) The Administrator may appoint one or more Deputy Commissioners of Police or Additional Deputy Commissioners of Police or Assistant Commissioners of Police for the purposes of this Act.

(2) Without prejudice to the other provisions of this Act and subject to any general or special orders made by the Administrator in this behalf, every Deputy Commissioner of Police or Additional Deputy Commissioner of Police or Assistant Commissioner of Police shall, under the orders of the Commissioner of Police, exercise such of the power (except the power to make relations) and perform such of the duties of the Commissioner of Police and within such local limits as may be specified in such orders."

15. Section 21 of the Act is subject to the provisions of Article 311 of the Constitution of India whereby the Commissioner of Police, Additional Commissioner of Police, Deputy Commissioner of Police, Additional Dy.

Commissioner of Police etc. have been empowered to award to any police officer of subordinate rank any of the punishments specified therein.

16. A rule, known as Delhi Police (Appointment and Recruitment) Rules, 1980 governs the conditions of service of the police forces. Rule 3(1) thereof defines "appointing authority" to mean:

"(i) "Appointing Authority" in relation to Inspector of Police means the Additional Commissioner of Police and in relation to the subordinate police officers below the rank of Inspector means the Deputy Commissioner of Police including the Additional Deputy Commissioner of Police, Principal/P.T.S. or any other officer of equal rank."

17. Rule 23 (6) of Delhi Police (Punishment & Appeal) Rules, 1980 provides for the appellate forum, which is reproduced as under:

"2.3. Appeals-

1-5 xxxxx

6. The appellate authorities in cases in which appeal is admissible as laid in Section 23 of the Delhi Police Act are indicated in the following table:-

--------------------------------------------------------------------- Officer by whom original order of punishment is Appellate Authority Passed

-----------------------------------------------------------------------

1. Deputy Commissioner of Police, Additional Additional Deputy Commissioner of Police, Principal Commissioner of Police Police Training School or College, Assistant Commissioner of Police or any other officer of equivalent rank.

------------------------------------------------------------------------

2. Additional Commissioner of Police Commissioner of Police

--------------------------------------------------------------------

3. Commissioner of Police Administrator, Delhi

--------------------------------------------------------------------

18. It is, therefore, evident that for all the officers below the rank of Inspector of Police, the appointing authority would be Deputy Commissioner of Police whereas the Additional Commissioner of Police would be the appellate authority and in the event Additional Commissioner of Police is the disciplinary authority, the appellate authority would be the Commissioner of Police and in case the Commissioner of Police is the disciplinary authority, the appellant authority would be the Administrator.

19. The contention that for the purpose of conferring the power of quasi-judicial authority upon the Joint Commissioner, a notification must be issued by the Administrator in terms of Section 5 of the Act, is not correct inasmuch as, as indicated hereinbefore, the total strength of the cadre of Additional Commissioner remained the same. Only by reason of a policy decision a few posts of Additional Commissioner have been upgraded to that of the Joint Commissioner. By reason of such re-designation, neither any merger in the cadre takes place nor any new cadre as such is created. For all intent and purport, Joint Commissioner, having regard only to enhancement in the scale of pay, would continue to exercise the jurisdiction of the Additional Commissioner. In any event, the Joint Commissioner would be an officer either equal or higher in rank of the Additional Commissioner and thus, any order passed by the Joint Commissioner shall satisfy the requirement of Article 311 of the Constitution of India.

20. In other words, although acting as a Joint Commissioner, he is exercising the power of Additional Commissioner and not a separate and distinct power which had not been conferred upon him in statute and/or which can be declared to be ultra vires. It is one thing to say that authority cannot exercise a statutory power unless it is conferred upon him expressly or by necessary implication but it is another thing to say that although an authority is designated differently, by reason of the statutory provisions, exercises the power of the statutory authority specified therein.

21. On or about 3rd March 1998, the Government of India in exercise of its power conferred upon it, under Sub-section (1) of Section 3 of All India Services Act, 1951 read with Sub-rules (1) and (2) of Rule 4 of Police Service Rules amended the Indian Police Service (Fixation of Cadre Strength) Regulations Act, 1955 in terms whereof while maintaining cadre strength of superior officers of Delhi police at 49, certain posts of Joint Commissioner of Police were created.

22. It is true that when a post of Additional Commissioner of Police was upgraded to the Joint Commissioner of Police, no notification was issued by the Administrator. By thereby, in our opinion, no alteration having been made in the cadre strength, those officers who used to exercise their respective powers under the statute, would continue to do so irrespective of change in the nomenclature of their designation.

23. As noticed hereinbefore, Section 21 of the Act is subject to Article 311 of the Constitution of India. In terms of Clause (1) of Article 311 of the Constitution of India, a person can be dismissed, removed or reduced in rank by his appointing authority or an authority higher than the said authority.

24. In this batch of writ petitions, we are not concerned as to whether the procedure for holding a departmental proceedings had strictly been followed or not. The only question which arises for consideration is as to whether keeping in view the peculiar facts and circumstances of this case, the orders impugned before learned Tribunal can be said to be bad in law.

25. Herein, however, the posts of Additional Commissioner of Police had been re-designated as Joint Commissioner of Police by the Central Government. Thereby, those who are now designated as Joint Commissioners of Police, do not cease to be Additional Commissioner of Police, so far as their jurisdiction to exercise the statutory power is concerned. No new power has been conferred upon the said authority nor a power which had been conferred upon them had been taken away by the Administrator. It is true that in terms of Section 4, the police force acts under the control of the Administrator but even if the arguments advanced by the learned counsel for the respondents is accepted, in the absence of such a notification, the Additional Commissions who were re- designated as Joint Commissioner, would continue to discharge their statutory function of Additional Commissioner. Furthermore, from the definition of "appointing authority" as contained in Rule 3(i), it would appear that not only the Additional Commissioner of Police but any other person of equal rank would also come within the purview thereof. Thus, the Joint Commissioner of Police for the purpose of the said Rules, would be officers of equal rank, if not higher rank to that of the Additional Commissioner of Police.

26. What is prohibited in terms of Clause (1)of Article 311 of the Constitution of India is that no officer shall be dismissed, removed or reduced in rank from services by an authority lower than his appointing authority. Here, even assuming that the Joint Commissioners of Police were higher in rank than the Additional Commissioners of Police, the requirement of Clause (1) of Article 311 of the Constitution of India is not infringed.

27. In the afore-mentioned situation and having regard to the provisions of Delhi Police Act, in our opinion, the Officer Memorandum issued by the Central Government to the effect that upgradation of post would amount to a creation of post, cannot be accepted. By reason of mere upgradation, the statutory functions assigned to an officer is not taken away and in any event, if it be held that the Notification dated 3rd March 1998 issued by the Central Government is illegal and without jurisdiction, the Joint Commissioners would in law, still continue to hold the post of the Additional Commissioner.

28. We may, at this juncture, notice the provisions of Section 17 and 18 of the General Clauses Act. These are as under:

"17. Substitution of functionaries.

(1) In any Central Act or Regulation made after the commencement of this Act, it shall be sufficient, for the purpose of indicating the application of a law to every person or number of persons for he time being executing the functions of an office, to mention the official title of the officer at present executing the functions, or that of the officer by whom the functions are commonly executed.

(2) This section applies also to all Central Acts made after the third day of January, 1868, and to all Regulations made on or after the fourteenth day of January, 1887.

18. Successors.

(1) In any Central Act or Regulation made after the commencement of this Act, it shall be sufficient, for the purpose of indicating the relation of a law to the successors of any functionaries or of corporations having perpetual succession, to express its relation to the functionaries or corporations.

(2) This section applies also to all Central Acts made after the third day of January, 1868, and to all Regulations made on or after the fourteenth day of January, 1887."

29. In terms of the afore-mentioned provisions, thus, also as Joint Commissioners become the repository of powers of the Additional Commissioner, any order passed by them in that capacity cannot be held to be illegal.

30. The question raised herein is no longer res integra in view of the decision of the apex court in Ram Kishan v. Union of India and Ors., wherein it has been categorically been held that even an Additional Commissioner of Police can pass an order of dismissal which is otherwise required to be passed by Deputy Commissioner of Police. Yet again in Balbir Chand v. Food Corporation of India and Ors., , it has been held:

"...It is a well settled legal position that the authority lower than the appointing authority cannot take any decision in the matter of disciplinary action. But there is no prohibition in law that the higher authority should not take decision or impose the penalty as the primary authority in the matter of disciplinary action..."

31. In Ram Kishan v. Union of India and Ors., 1995(6) SLR 52, upon considering the question as to whether Additional Deputy Commissioner could be delegated with the power of appointing Sub Inspectors having regard to Rule 6 of the Rules, the Supreme Court held:

"9. It is, therefore, contended that the Rule indicates that an officer of the inferior rank cannot exercise the power to impose major punishment. It is already seen that under Rule 4 of the Rules, the Additional Deputy Commissioner of the Police is also one of the appointing authorities; and by the force of Section 19 of the General Clauses Act, he can exercise the powers of the Deputy Commissioner of Police. So, in a given case, even Additional Deputy Commissioner can pass order of dismissal, if what has been provided in Section 19 of the General Clauses Act is also borne in mind. The exercise of power with the aid of the Rules and the Appeal Rules by the Additional Deputy Commissioner in the present case cannot be said to be without authority of law or void. He is competent to pass the order."

32. Thus, only because the name of the Joint Commissioner was not mentioned, keeping in view the fact that the said authority had been exercising all the powers and functions of the Additional Commissioner of Police, in the statutory function exercised by him cannot be said to be non-est in the eye of law. The learned Tribunal, therefore, in our opinion, was not correct in holding that as the post of Joint Commissioner of Police created by upgrading the post of Additional Commissioner of Police has not been mentioned in the Police Act, he being senior to the letter, the orders of punishment cannot be sustained.

33. The matter, however, would have been otherwise had the power exercised by the appellate authority where after the right of appeal vested in a delinquent employee was taken away, as was the case in Surjit Ghosh v. Chairman & Managing Director, United Commercial Bank and Ors., .

34. Having regard to the facts and circumstances of this case, we are of the opinion that the impugned judgments cannot be sustained which are set aside accordingly and the matters and remitted to the learned Tribunal for consideration of the matter afresh on merit.

35. No orders as to costs.