Commissioner Of Police vs Shri Brij Pal Singh
2008 Latest Caselaw 2150 Del

*         HIGH COURT OF DELHI : NEW DELHI


+         Writ Petition (Civil) No.1044 of 2008 and other
          connected matters.


                     Judgment reserved on: November 3, 2008

%                    Judgment delivered on: December 4, 2008


Commissioner of Police
Police Headquarter
ITO, New Delhi.                                    ...Petitioner

                     Through Mr. P.P. Malhotra, ASG with
                             Mr. Vivek Tandon, Mr. Ajesh Luthra,
                             Ms. Manpreet Kaur and Mr. Chetan
                             Chawla, Advs.

                     Versus

Shri Brij Pal Singh
S/o Shri Shyam Singh
Government Quarter No.C-10
Shalimar Bagh
Delhi.                                             ...Respondent

                     Through Mr. Naresh Kaushik with
                             Mr. M.K. Bhardwaj, Advs.

Coram:

HON'BLE MR. JUSTICE MADAN B. LOKUR
HON'BLE MR. JUSTICE SURESH KAIT

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                             Yes


WP (C) No.1044/2008 & connected matters                     Page 1 of 14
 2. To be referred to Reporter or not?                               Yes

3. Whether the judgment should be reported                          Yes
   in the Digest?


MADAN B. LOKUR, J.

The only issue that we are required to consider is whether,

notwithstanding the proviso to Rule 11(1) of the Delhi Police

(Punishment and Appeal) Rules, 1980 (for short the Rules) a police

officer can be dismissed or removed from service during the pendency

of a first appeal against an order of conviction and sentence.

2. With the consent of learned counsel for the parties, we heard

submissions on this issue arising out of O.A. No.544/2006 decided by

the Central Administrative Tribunal, Principal Bench, New Delhi on 9 th

March, 2007 in a batch of connected original applications. It was agreed

that WP(C) No.1044/2008 be treated as the main case.

3. For facility of reference Rule 11(1) of the Rules and its

proviso read as follows:-

"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." (Emphasis supplied)

4. The broad facts in all these cases are not in dispute. Suffice

it to say, in WP(C) No.1044/2008, the Respondent was convicted of an

offence under Section 7 read with Section 13 of the Prevention of

Corruption Act, 1988. The conviction was handed down on 11th

December, 2002 and he was sentenced to undergo two years simple

imprisonment and a fine of Rs.2000/-. In default of payment of fine, he

was to undergo simple imprisonment for a further period of two months.

The sentence was awarded on 16th December, 2002.

5. Against the conviction and sentence, the Respondent filed an

appeal in this Court being Crl.A. No.995/2002 and by an order dated

10th November, 2003 the sentence was suspended. The appeal is still

pending disposal.

6. On 9th December, 2005, the Petitioner issued a circular

pursuant to a decision rendered by the Supreme Court in Deputy

Director of Collegiate Education (Administration), Madras v. S.

Nagoor Meera, 1995 (3) SCC 377. The essence of the circular is that in

view of the judgment of the Supreme Court, orders could be passed

dismissing or removing a convicted police officer under Clause (a) of

the second proviso to Article 311(2) of the Constitution during the

pendency of his first appeal against the order of conviction and

sentence. The circular provides that an order passed under Clause (a) of

the second proviso to Article 311(2) of the Constitution is not barred,

merely because the sentence is suspended by the appellate Court or the

convict has been released on bail. In view of this, the disciplinary

authority was required to take action under the Constitution in

appropriate cases. This circular was issued in supersession of an earlier

circular dated 6th January, 1994.

7. For facility of reference the circular dated 9 th December,

2005 reads as follows:-

"The Constitution of India provides [ Article 311 (2) (a)] that a Government servant can be dismissed/removed from service or reduced in rank on the ground of conduct which has led to this conviction on a criminal charge. On the other

hand, section 11(1) of the Delhi Police (Punishment and Appeal) Rules provides that action to dismiss/remove etc. of police officers on conviction in a criminal case can only be taken after the result of the first appeal is known. In a Civil Appeal No.2992 of 1995 (arising out of S.L.P. (C) No.684 of 1995) - Deputy Director of Collegiate Education (Administration), Madras Vs. S. Nagoor Meera, the Hon'ble Supreme Court has observed that what is relevant for clause

(a) of second proviso to Article 311(2) is the "conduct which has led to the conviction on a criminal charge". The apex Court has observed that even if an Appellate Court suspended the order there can be "no question of suspending the conduct". It has categorically stated that passing such orders under Article 311(2) (a) are not barred merely because the sentence has been suspended by the Appellate Court and/or the said Government servant/accused has been released on bail.

The provisions of the Constitution of India and observations of the Hon'ble Supreme Court should definitely prevail over the provisions of the Delhi Police (Punishment & Appeal) Rules. Further as the Hon'ble Apex Court has pointed out, action under Clause (a) of the second proviso to Article 311(2) focuses of the conduct leading to the conviction. The Hon'ble Apex Court has in fact specifically observed that the clause does "not speak of sentence or punishment awarded". Section 11(1) of the Delhi Police (punishment & appeal) Rules are, on the other hand, conviction based.

In view of this, disciplinary authorities should take action under the Constitution of India in appropriate cases.

This circular supersedes the earlier circular issued by this Hdqrs. No.479-510/CR-I, PHQ dated 6-1-1994."

8. 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.

9. Apparently acting in pursuance of the above circular the

Petitioner passed an order on 8th February, 2006 dismissing the

Respondent from service in exercise of powers conferred by Clause (a)

of the second proviso to Article 311(2) of the Constitution. Similar

orders of dismissal/removal were passed in respect of all other

Respondents in this batch of writ petitions. The Tribunal noted that

except in the case of some Respondents, the dismissal/removal orders

were not given effect to because of the intervention of the Tribunal but

in other cases the dismissal/removal orders were given effect to and a

departmental appeal/revision is stated to have been filed against those

orders.

10. After hearing learned counsel for the parties, the Tribunal

concluded that the decision rendered by the Supreme Court in S.

Nagoor Meera was not at all applicable to the facts of the case. The

basic reason given by the Tribunal for coming to this conclusion is that

S. Nagoor Meera did not consider a statutory bar, such as the one that

exists in the proviso to Rule 11(1) of the Rules. Therefore, the Tribunal

endorsed the earlier view taken by the Petitioner in this regard as

contained in the circular dated 6th January, 1994 (since superseded by

the circular dated 9th December, 2005). The text of the circular dated 6 th

January, 1994 reads as follows:-

"Instances have come to notice where disciplinary authorities have dismissed under Article 311(2)(a) of the Constitution those police personnel who have been convicted by a court of law, without awaiting result of the pending appeal in a higher court. This act contravenes Rule 11 of Delhi Police (Punishment and Appeal) Rules, 1980 and also renders the department liable to unnecessary and avoidable litigation in court.

Keeping spirit of Rule 11 in view it is advised that action under Article 311(2) (a) may not be taken where the first appeal of the convicted police personnel is pending in the appellate court."

11. In this view of the matter, the Tribunal held that all the

applicants before it (the Respondents before us) would be deemed as

continuing under suspension all throughout. This would, of course,

exclude those applicants who are actually undergoing imprisonment.

With this direction, all the original applications were disposed of in

favour of the applicants (now Respondents before us).

12. It is against this common order passed by the Tribunal that

the Petitioner is now before us under Article 226 of the Constitution.

13. It is submitted by the learned Additional Solicitor General

that the proviso to Rule 11(1) has to be interpreted "harmoniously". His

submission appears to be that since Clause (a) of the second proviso to

Article 311(2) of the Constitution permits dismissal or removal of a

convicted police officer, it is permissible for the Petitioner to invoke the

constitutional power to dismiss or remove the Respondent. To this

limited extent, the submission of the learned Additional Solicitor

General is acceptable but unfortunately for him, in this case there is a

proviso to Rule 11(1) of the Rules which has to be contended with.

14. 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.

15. In this connection, it would be worth referring to J.K.

Industries v. Chief Inspector of Factories and Boilers, (1996) 6 SCC

665 wherein the Supreme Court has explained the purpose of a proviso

in the following words:

"34. A proviso qualifies the generality of the main enactment by providing an exception and taking out from the main provision, a portion, which, but for the proviso would be a part of the main provision. A proviso must, therefore, be considered in relation to the principal matter to which it stands as a proviso. A proviso should not be read as if providing something by way of addition to the main provision which is foreign to the main provision itself."

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.

16. Learned Additional Solicitor General then contended that

"the result of the first appeal" should be read down to mean an interim

order of suspension of sentence or grant of bail to the convicted police

officer by the appellate Court. In other words, it was contended that the

Petitioner does not have to await the "final result" of the first appeal.

We are unable to appreciate this artificial dichotomy sought to be

created. An interim order passed in a first appeal cannot, by any stretch

of imagination, be said to be "the result of the first appeal". Moreover,

the contention of the learned Additional Solicitor General would compel

us to read words into the proviso which are not there and which is, even

otherwise, impermissible in law. The expression "the result of the first

appeal" can only have its natural meaning, which is with reference to the

disposal of the appeal and nothing short of it. In fact, this is precisely

the interpretation given by the Petitioner itself to the proviso to Rule

11(1) of the Rules in the circular dated 6th January, 1994.

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/-.

                                             MADAN B. LOKUR, J



December 4, 2008                             SURESH KAIT, J
vk

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