Commissioner Of Police, Delhi vs Ram Niwas & Anr.
2009 Latest Caselaw 5050 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI


+           W.P. (Civil) No. 5117/2001

%                                          Reserved on: November 10, 2009

                                           Decided on: December 7, 2009

COMMISSIONER OF POLICE, DELHI                ..... Petitioner
                 Through: Mr. Neeraj Choudhary, Advocate

                   versus

RAM NIWAS & ANR.                                            ..... Respondents
                            Through:    Mr. Jagjit Singh, Advocate


Coram:

HON'BLE MR. JUSTICE MADAN B. LOKUR
HON'BLE MS. JUSTICE MUKTA GUPTA


1. Whether the Reporters of local papers may
   be allowed to see the judgment?                         Not necessary

2. To be referred to Reporter or not?                      Not necessary

3. Whether the judgment should be reported
   in the Digest?                                          Not necessary

MUKTA GUPTA, J.

1. A departmental enquiry was initiated against the Petitioner for

unauthorized absence from duty while he was working in the Foreigners

Regional Registration Office (in short "FRRO"). Thereafter, the Petitioner

was transferred to the Third battalion, Delhi Police and pursuant to an enquiry

held, the FRRO acting as disciplinary authority, vide its order dated 14th

October, 1992 awarded the punishment of dismissal from service to the

Respondent No.1. On appeal the Appellate Authority vide its order dated 20th

April, 1993 set aside the order of the FRRO on the ground that it ceased to be

the disciplinary authority after the Respondent No.1 reported for duty in Delhi

Armed Police (in short DAP), Third battalion and directed that the findings of

the Enquiry Officer be forwarded to the Deputy Commissioner of Police/III

Bn. DAP Delhi along with Disciplinary Authority for passing appropriate

orders. The Respondent No.1 was reinstated and subsequent thereto the

Deputy Commissioner of Police, Third battalion after considering the entire

material, while acting as the disciplinary authority dismissed the Respondent

No.1 from service by an order dated 28th November, 1994. His

appeal/revisions to the Appellate Authority, the Revisionary Authority and the

Lt. Governor were rejected.

2. Challenging the orders of Disciplinary Authority dated 28th November,

1994 and the Appellate Authority dated 8th November, 1995, the Respondent

herein filed an application before the Central Administrative Tribunal being

OA No.2118/1999. The Tribunal allowed the application on 1st February,

2001 in the light of its earlier decision rendered in the case of Union of India

and others v. Constable Braham Prakash & others in OA No.2598/1996. It

allowed the application to the extent that the order initiating disciplinary

proceedings, Inquiry Officer's report, the Disciplinary Authority's order as

well as Appellate Authority's order and the revisional authority's order were

quashed and set aside. The Tribunal also remanded the matter to the

Commissioner of Police for entrustment of the departmental enquiry to the

competent authority from the stage of issue of the summary of allegations.

3. The Tribunal in its earlier decision in the case of Union of India &

others v. Constable Braham Prakash & others (supra) had held that the

notification vesting powers of the Disciplinary Authority in the FRRO would

have no effect till it was published in the gazette.

4. The Petitioner impugns the order dated 1st February, 2001 of the

Tribunal before us.

5. The issue which arises in the present writ petition is no longer res

integra. This Court in its earlier decisions rendered in the case in Davinder

Kumar v. Union of India & others, WP (C) No.213/2001 and Union of India

and others v. Constable Braham Prakash & others, WP (C) No.3030/1990

has held that the FRRO has jurisdiction to hold disciplinary proceedings.

6. Moreover in the present case, the order of the FRRO acting as

disciplinary authority had already been set aside by the appellate authority

vide its order dated 27th April, 1993, with a direction of the DCP Third

Battalion to consider the case as the disciplinary authority, as the Respondent

had been transferred to Third Battalion. The order dated 27th April, 1993

passed by the appellate authority has not been challenged by the Respondent

herein, before the Central Administrative Tribunal. Thereafter the DCP Third

Battalion acting as disciplinary authority imposed the penalty of dismissal

from service vide order dated 28th November, 1994. Thus the Tribunal clearly

erred on facts in ignoring the order dated 28 th November, 1994 passed by the

DCP, Third Battalion and subsequent orders and in holding that:

"In any case delay if at all would be only for a period of about four months, and in the light of the fact that the FRRO did not have the powers of the Disciplinary Authority till 29.1.98 and the impugned orders are prima facie non-est and void, we hold that limitation cannot be advanced as a ground at this stage to reject applicant's legitimate claims.

In the result this O.A. succeeds and is allowed to the extent that the order initiating disciplinary proceedings, I.O.'s report, the Disciplinary Authority's order as well as Appellate Authority's order and the revisional authority's order are quashed and set aside."

7. The writ petition is allowed. The impugned judgment passed by the

Central Administrative Tribunal in OA No.2118/1999 is set aside. The matter

is remanded back to the Central Administrative Tribunal for hearing on the

issues urged by the Respondent. The parties should appear before the

Tribunal for directions on 6th January, 2010.

MUKTA GUPTA, J

MADAN B. LOKUR, J DECEMBER 7, 2009 mm