Delhi High Court

Additional Commissioner Of ... vs Shri Jagbir Singh & Anr. on 13 March, 2009

Author: A.K.Sikri

                                   Reportable

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

                                           Reserved on: January 27, 2009.
                                          Pronounced on : March13, 2009.

1)      W.P.(C) No. 4042 of 1997

+ Additional Commissioner of Police & Ans.            . . . Petitioners

                    through :             Ms. Avnish Ahlawat, Advocate
                                          Mr. Saurabh Chadda, Advocate
              VERSUS

    Shri Jagbir Singh & Ans.              . . . Respondents

                      through             Mr. R.K. Saini, Advocate

2)      W.P.(C) No. 4574 of 1997

+ Additional Commissioner of Police & Ans.            . . . Petitioners

                    through :             Ms. Avnish Ahlawat, Advocate
                                          Mr. Saurabh Chadda, Advocate
              VERSUS

    Ex. Constable Jai Karan & Ans.              . . . Respondents

                      through             Mr. Sachin Chauhan, Advocate

CORAM :-
   THE HON'BLE MR. JUSTICE A.K. SIKRI
   THE HON'BLE MR. JUSTICE SURESH KAIT

        1.    Whether Reporters of Local newspapers may be allowed
              to see the Judgment?
        2.    To be referred to the Reporter or not?
        3.    Whether the Judgment should be reported in the Digest?


A.K. SIKRI, J.

1. Having regard to the commonality of the factual backdrop in which a

legal issue arises in both these writ petitions, they were heard

together and as a necessary consequence we are deciding the same by

this common judgment. For the sake of convenience, we shall take

note of the facts as they appear in W.P.(C) No. 4042 of 1997 and claim

without any fear of contradiction that the same factual position

prevails in the other writ petition as well.

2. The respondent in this writ petition was working as a Constable in

Delhi Police. He was placed under suspension w.e.f. 24.03.1987 on

the ground that he was involved in a case under the Arms Act. The

suspension order was, subsequently, revoked when the order dated

02.11.1989 was passed by the Competent Authority reinstating him in

service. According to the petitioner-department, the respondent

refused to receive letter dated 02.11.1989 vide which he was ordered

to join the duty. On this basis charge-sheet was served against him

on the ground that:

"The respondent was placed under suspension on 24.03.1987 was reinstated in service vide order dated 02.11.1989 he refused to receive reinstatement order on three occasions, the registered A.D. letter was also sent back with the remark that constable was not found available. He joined duty only on 06.12.1989. He had earlier absented for 433 days, 21 hours and 45 minutes on 32 different occasions during the suspension period. During the suspension period, he was not to leave the headquarters without the permission of Competent Authority. He refused to receive the copy of the reinstatement order on both occasions on 04.11.1989 and 07.11.1989, verbally stating that he would be receiving the

copy of the order when he would joint duty on 08.11.1989. On his failure to join duty on that day, he again refused to receive the copy of the said order on 15.11.1989. He absented himself for total number of 433 days, 21 hours and 45 minutes on 32 different occasions. Although he was asked not to leave the headquarters during his suspension period without the prior permission of the competent authority but he remained absent unauthorizedly during this period without getting prior permission by the competent authority. He was, therefore, charged under Section 21 of the Delhi Police Act, 1978. "

3. In the inquiry conducted, the findings were returned by the Inquiry

Officer that the charges were proved. On that basis, he was

dismissed from service after 22.01.1990. His appeal was also

dismissed by the Appellate Authority vide orders dated 16.01.1992.

At this stage, he approached the Central Administrative Tribunal,

Principal Bench, New Delhi and challenged the order of disciplinary

as well as the Appellate Authority, by filing application under

Section 19 of the Administrative Tribunal Act. His plea was that he

was not absent from duty as, during the suspension period he was

not supposed to mark his presence and therefore he could not be

treated as unauthorizedly absence from duty. He also submitted that

even in the order placing him under suspension, no specific direction

was given to him to attend to Roll Calls or to mark his presence. He

also denied the allegations that he had refused to receive the order of

reinstatement on three occasions.

4. The learned Tribunal has, vide its judgment dated 25.06.1997,

accepted the contentions of the respondent and allowed the OA.

While setting aside the punishment orders, the following directions

have been given by the Tribunal:

"The applicant will be in service forthwith and the respondents are also directed to pass appropriate orders for regularizing the period from 30.10.1992 to the date of actual reinstatement in accordance with rules and orders on the subject. We, however, make it clear that in view of the fact that one of the charges regarding his misconduct in refusal to accept the copy of the reinstatement order on more than one occasion has been established, we provide that it will be open to the disciplinary authority to initiate such action as may be necessary and to pass appropriate orders in proportion to this charge and in accordance with rules."

5. The orders passed by the Disciplinary Authority and Appellate

Authority are set aside on the following grounds:

a) As regards unauthorized absence of the respondent,

Rule 27 of the Delhi Police (Punishment & Appeal)

Rules, 1980 stipulates that there is no requirement of

personal appearance of the respondent/suspended

police official on duty during the period of suspension.

Even if there was any standing order, this will not be

consistent with rules and cannot be enforced upon the

respondent.

b) Though the Disciplinary Authority took into

consideration his past bad record for which he was

departmentally dealt with and was punished for

certain other charges, that had not been made a

specific charge in the instant proceedings though

mandatory required under Rule 11 of the Delhi Police

(Punishment & Appeal) Rules, 1980.

6. The Tribunal was thus of the opinion that as unauthorized absence

was the substantial charge against the respondent on which the

impugned order of dismissal had been passed by the Disciplinary

Authority and upheld by the Appellate Authority, this order could

not be sustained and was set aside.

7. The petitioner, however, have not eschewed the aforesaid order and

feeling aggrieved, this writ petition is preferred. We may also point

out, at this stage, that insofar as the charge of refusing to receive the

copy of the reinstatement order is concerned, the Tribunal has not

interfered with the same. Therefore, in this writ petition the only

question that arises for consideration is as to whether it is incumbent

upon the suspended employee to attend the Roll Calls and mark his

presence at that time.

8. Learned counsel for the petitioner has referred to the following

provisions of Delhi Police Act (hereinafter referred to as the Act):

"14. Effect of suspension of police officer. - The powers, functions and privileges vested in a police officer shall remain suspended while such police officer is under suspension from office:

Provided that notwithstanding such suspension such person shall not cease to be a police officer and shall continue to be subject to the control of the same authorities to which he would have been subject if he had not been under suspension.

24. Police officers to be deemed to be always on duty and to be liable to employment in any part of Delhi. - Every police officer not on leave or under suspension shall for all purposes of this Act be deemed to be always on duty and nay police officer or any number or body of police officers allocated for duty in any part of Delhi may, if the Commissioner of Police so directs, at any time, be employed on police duty in any other part of Delhi for so long as the services of the police officer or number or body of police officers may be required in such other part of Delhi.

She also drew our attention towards the Standing Order

No. 123/1989, which deals with the suspension and inter alia

stipulates as under:

"6. Status and treatment of officers under suspension - During the term of such suspension the powers, functions and privileges vested in him as a Police Officer shall be in abeyance, but he shall continue to be subject to the same responsibilities, discipline and penalties and to the same authorities, as if he had not been suspended.

A Police Officer under suspension shall be transferred to the Lines, if not already posted there. He shall attend all roll calls and shall be required to perform such duties and to attend such parades as the Dy. Commissioner of Police may direct, provided that he shall not perform guard duty or any other duty entailing the exercise of the powers or functions of a Police Officer; shall not be placed on any duty involving the exercise of responsibility and shall not be issued with ammunition. Police Officer under suspension shall ordinarily be confined to lines when off duty, but shall be allowed reasonable facilities for the preparation of his defence."

She further referred to Rule 26 of Delhi Police (Punishment &

Appeal) Rules, 1980 as amended on 22.07.1988 which makes the

following reading :

"26. Suspension - (1) Officers of the rank of an Assistant Commissioner of Police and above are authorized to suspend all police officers of subordinate rank. Inspectors of police can suspend any police officer below the rank of Sub-Inspector. The suspension of an upper subordinate shall be immediately reported to the Deputy/Additional commissioner of Police.

(2) An officer shall be released from suspension only by the gazette officer empowered to punish/appoint him.

(3) (i) During the terms of such suspension the powers functions and privileges vested in him a Police Officer shall be in abeyance but he shall continue to be subject to the same responsibilities discipline and penalties and to the same authorities, as if he had not been suspended.

(ii) A Police Officer under suspension shall be transferred to the lines if not already posted there. He shall attend all roll calls and shall be required to perform such duties and to attend such parades as the Deputy Commissioner of Police may direct provided that he shall not perform guard duty or any other duty entailing the exercise of the powers or functions of a Police Officer, shall not be placed on any duty involved the exercise of responsibility and shall not be issued of with ammunition. A Police officer under suspension shall ordinarily be confirmed to lines, when off duty, but shall be allowed responsible facilities for the preparation of his defence when transferred to the line, lower or upper subordinate shall deposit their kits in the line and shall not wear any article of uniform till they are reinstated or specifically permitted by the Commissioner of Police as contained in sub-rule (iii) of Rule 15 of the Delhi Police (General Conditions of Service) Rules, 1980."

9 Her submission is that this amendment in Rule 26 was simply a

clarification of what is contained in Section 14 of the Act. She argued

that on conjoint reading of the aforesaid provisions, it would

manifest that even when a Police Officer is placed under suspension,

he does not cease to be a Police Officer; the only embargo is that he

cannot discharge the functions of a Police Officer and his powers and

privileges as police officer are suspended. Therefore, he is supposed

to attend the Roll Calls. This was clear from the provisions of Section

24 of the Delhi Police Act, as per which a police officer is deemed to

be always on duty and duty of roll call would remain intact even

after suspension. Further, sub-rule 3 (i) which was added vide

amendment dated 22.07.1988 was only clarificatory of the provisions

contained in Section 14 of the Act as per which even a suspended

employee was continued to be subject to the same responsibilities,

discipline and penalties, as if he had not been suspended. Learned

counsel for the petitioner referred to the following judgments of the

Supreme Court in support of her submissions:

i) State of Punjab & Ors. Vs. Dharam Singh, (1997) 2 SCC

ii) State of Punjab & Ors. Vs. Charanjit Singh, JT 2003 (Suppl. 1) SC 319.

iii) Maan Singh Vs. Union of India & Ors. (2003) 3 SCC 464.

10. Learned counsel for the respondent, on the other hand, reiterated his

submissions, which was made before the Tribunal, viz.:

a) In the order placing him under suspension, there was

no direction to him to attend the roll calls or to mark

his presence at the duty place;

b) The only direction given to the respondent was that he

should not leave the Headquarters during the

suspension period which he had dutifully obeyed.

c) Rule 27 of the Rules do not contain any provision

which mandates the personal appearance of a

suspended Police Official on duty during the period of

suspension.

d) Attention of the Tribunal was not drawn towards

Standing Orders dated 31.03.1989 specifically. Only a

general statement was made about the Standing

Orders and therefore, contention of the respondent

before the Tribunal was that even if there is a standing

order, the same could not be inconsistent with the

Rules and therefore could not be enforced.

e) On his suspension, he was attached to Police Lines.

According to the respondent one has to keep subtle

distinction between the Police Officer posted in Police

Lines while on duty and another police officer who is

attached to Police Lines on suspension. A person in

the latter category is not on active duty.

f) Amendment to Rule 26 was made only in the year

1988, which would not apply to the case of the

petitioner who was suspended w.e.f. 24.03.1987 when

there was no such provision in Rule 26.

11. We have considered the submissions of both the counsel and have

also gone through the case law relied upon by them. We had already

reproduced the language of Section 14 of the Act. Rule 16.21 of

Punjab Police Rules is pari materia with Section 14 of Delhi Police Act,

1980 and reads as under:

"16.21 Status and treatment of officer under suspension. - (1) A police officer shall not by reason of being suspended from office cease to be a police officer.

During the term of such suspension the powers, functions and privileges vested in him as a police officer shall be in abeyance, but he shall continue subject to the same responsibilities, discipline and penalties and to the same authorities, as if he had not been suspended."

The interpretation of that Rule came up for consideration before the

Supreme Court in the case of Dharam Singh (supra). In that case also

the question was as to whether a suspended employee was supposed

to report for duty or not.

Interpreting the rule, the Court held that even a suspended Police

Officer was required to attend the Roll Calls and be available to the

authorities is clear from the contents therein. Following passage

from this judgment manifests this:

"A reading of it would clearly indicate that even during the period of suspension the police officer is required to attend to roll-call and be available to the authorities. The payment of subsistence allowance, as ordered, under the suspension rule is one facet of it and his duty to be present is another. Non- payment of subsistence allowance does not entitle a delinquent officer to be absent from duty. It is his duty to claim subsistence allowance, go to the office and collect subsistence allowances and if it is not paid, necessary representation to the higher authorities and, if the grievance is of redressed, to the appropriate forum seeking payment, may be made. But that does not mean that the delinquent officer, in the face of the express rule, can absent himself from duty. Under these circumstances, the conclusion

reached by the disciplinary authority that he was willfully absent from duty is well justified."

12. Having regard to the aforesaid ruling of the Apex Court, we have no

option but to accept the submissions of the learned counsel for the

petitioner herein to the effect that even under suspension, the

respondent was under obligation to attend roll-calls and be available

to the authorities.

13. The aforesaid interpretation would also buttress the submissions of

the learned counsel for the petitioner that amendment to Rule 26 with

addition of sub-rule (3) would only be clarificatory in nature as that

mandate is already provided in Section 14 of the Act. The purpose

was thus to put doubts, if any, to rest.

14. Significantly, on this aspect consistent view is taken by the Supreme

Court, viz., insofar as attending the roll-calls by the Police Official is

concerned. It is clear from the reading of another judgment of the

Supreme Court in Charanjit Singh (supra) in view of the following

observations therein:

"6. The submission of the learned counsel appearing for the respondent that since the respondent was under suspension, therefore there was no occasion for him to seek permission for leave, is also erroneous. The order of suspension dated 24.11.1984 stipulated that the respondent shall remain present in police lines and will attend all the roll calls and parades and he was further ordered not to leave station without prior permission."

15. No doubt, in this case, even the suspension order stipulated that the

suspended employee will attend all the roll-calls and parades.

However, absence of such a stipulation in the suspension order in the

case of respondent herein would not give him any benefit. We record

this for more than one reasons:

a) In view of statutory provision contained in Section 14 of the

Act, obligation was cast upon the respondent to attend the roll-

call even if no specific stipulation is there under the suspension

order.

b) More importantly, the respondent himself understood to be so

inasmuch as after the suspension order he attended the roll-

calls initially, but stopped absenting afterwards. If there was

no such requirement, it is baffling as to why in first instance

the respondent had attended the roll-calls. This conduct of the

respondent amply demonstrates that he knew his duty to

attend the roll-calls but stopped doing so afterwards, which

would clearly amount to his unauthorized absence.

16. We find that the Tribunal has referred to the judgment of the

Supreme Court in the case of V.P. Gindroniya Vs. State of Madhya

Pradesh & Ans. AIR 1970 SC 1495. That was, however, a case of a

Civil Servant under the employment of Madhya Pradesh. The Court

had considered the right of the employer to place his employee under

suspension. This judgment, according to us, does not advance the

case of the respondent at all. Moreover, in the present case, we are

concerned with the statutory provisions contained in Delhi Police Act

and the Rules on the basis of which the case is to be decided.

17. The impugned judgment dated 05.06.1997 passed in OA No.

579/1992 and the judgment dated 09.07.1997 passed in

OA No. 503/1992 are accordingly set aside and the two OAs