Commissioner Of Police, Deputy ... vs R.C. Shekharan
2003 Latest Caselaw 468 Del

JUDGMENT

Madan B. Lokur, J.

1. The Petitioners are aggrieved by an order dated 12th August, 2003 passed by the Central Administrative Tribunal, Principal Bench, New Delhi (hereinafter referred to as the Tribunal) allowing O.A. No.2126 of 2001 filed by the Respondent. The Petitioners had filed a review application being R.A. No.244 of 2002 seeking a review of the order dated 12th August, 2002 but by an order dated 24th October, 2002 the Tribunal dismissed the review application. The dismissal of the review application is also challe ged by the Petitioners in this writ petition under Article 226 of the Constitution.

2.At the relevant time, the Respondent was a Head Constable with the Delhi Police. It was alleged that while posted in the Road Safety Cell of the Traffic Police at Pragati Maidan, he demanded money from each driver attending classes in the Road Safety Cell. The activities of the Respondent were kept under watch and eventually he was apprehended. During a search, some amount was recovered from him.

3.Since the activities of the Respondent amounted to gross misconduct unbecoming of a member of the disciplined force, a departmental enquiry was initiated against him. After the conclusion of the departmental enquiry, an order dated 6th February, 1998 was passed against the Respondent awarding him a punishment to the effect that two years approved service was forfeited permanently for a period of two years entailing proportionate reduction in his pay with immediate effect. The Respondent filed an app al against the order of punishment, which appeal was rejected. A revision petition was also preferred by the Respondent but that was not entertained because there was no provision for filing a revision petition. Thereafter, the Respondent filed O.A. No 2126 of 2001 before the Tribunal.

4.Among various contentions that were urged in the Tribunal on behalf of the Respondent, one of them was to the effect that there was non-compliance with Rule 15(2) of the Delhi Police (Punishment and Appeal) Rules, 1980 (hereinafter referred to as the R ules). This rule reads as follows:-

"15. Preliminary enquiries.

(1) xxx xxx xxx

(2) In cases in which a preliminary enquiry discloses the commission of a cognizable offence by a police officer of subordinate rank in his official relations with the public, departmental enquiry shall be ordered after obtaining prior approval of the A ditional Commissioner of Police concerned as to whether a criminal case should be registered and investigated or a departmental enquiry should be held.

(3) xxx xxx xxx"

5.The submission made before the Tribunal by the Respondent was that there were two options available to the Additional Commissioner of Police, one being to initiate a criminal case against the Respondent and the other being to initiate a departmental en quiry. However, it was submitted before the Tribunal that the case of the Respondent was never put up before the Additional Commissioner of Police and consequently there was no application of mind to the question whether a criminal case should be lodge against the Respondent or a departmental enquiry should have been initiated against him.

6.The Tribunal, by the impugned order, held that since the case of the Respondent was not even considered by the Additional Commissioner of Police and there was no application of mind to the question whether, in view of the offence alleged to have been committed by the Respondent, he should be proceeded against departmentally in preference to a criminal case, the initiation of a departmental enquiry was liable to be quashed and the matter remanded back to the Additional Commissioner of Police for a co sideration of the issue. It is against this direction that the Petitioners have filed the present writ petition.

7.We heard learned counsel for the Petitioners on 27th February, 2003 when he prayed for an adjournment to cite some cases to substantiate his submission that there was due application of mind on the part of the Additional Commissioner of Police in ter ms of Rule 15(2) of the Rules. Today when the matter was taken up for hearing, learned counsel for the Petitioners was unable to cite any decision in support of his contention.

8.Indeed, there cannot be any case law on the question that has arisen in the present case inasmuch as it is a question of fact whether there was any application of mind by the Additional Commissioner of Police to the question whether the Respondent sh ould be proceeded against by lodging a criminal case against him or by holding a departmental enquiry against him. As noticed by the Tribunal, the file was never put up before the Additional Commissioner of Police and hence there was no application of mind by him to this aspect of the matter. It is not as if in every case a departmental enquiry has to be initiated or that in every case a criminal prosecution has to be launched. It is for the Additional Commissioner of Police to decide on the facts of each case what action is to be taken against a delinquent officer. In the present case, there was no such application of mind by the Additional Commissioner of Police because the file was not put up before him in terms of Rule 15(2) of the Rules.

9.Consequently, we find no error in the view taken by the Tribunal. We uphold the view taken by the Tribunal that the case papers were required to have been placed before the Additional Commissioner of Police in terms of Rule 15(2) of the Rules and tha t he should apply his mind to the question whether the Respondent should be proceeded against departmentally or should be proceeded against in a criminal Court. We affirm the decision of the Tribunal. The matter be now placed before the Additional Com issioner of Police for taking a decision in terms of Rule 15(2) of the Rules. The Additional Commissioner of Police should take the necessary decision within a period of two months from the receipt of a copy of this order.

10. The writ petition is dismissed, but with no order as to costs.