Delhi High Court
Harvir Singh vs Union Of India And Others on 13 January, 2010
Author: Madan B. Lokur
* HIGH COURT OF DELHI : NEW DELHI
+ Writ Petition (Civil) No. 4001 of 2001
Judgment reserved on: November 19, 2009
% Judgment delivered on: January 13, 2010
Harvir Singh
S/o Shri Dharam Vir
R/o House No.73, CPO Block
Madangir, New Delh-110062. ...Petitioner
Through: Mr. Arun Bhardwaj, Adv.
Versus
1. Union of India
Through Secretary
Ministry of Home Affairs
North Block
New Delhi-110001.
2. The Commissioner of Police
M.S.O. Building, Police Headquarters
I.P. Estate, New Delhi.
3. The Addl. Commissioner of Police
(Armed Police & Training)
M.S.O. Building, Police Headquarters
I.P. Estate, New Delhi.
4. The Deputy Commissioner of Police
VIII Bn. DAP
Malviya Nagar, New Delhi. ...Respondents
Through: Mr. V.K. Tandon, Adv.
WP (C) No. 4001/2001 Page 1 of 11
WITH
Writ Petition (Civil) No. 2870 of 2001
Union of India
Through Commissioner of Police
M.S.O. Building, Police Headquarters
I.P. Estate, New Delhi. ...Petitioner
Through: Mr. V.K. Tandon, Adv.
Versus
1. Central Administrative Tribunal
Through its Registrar
Principal Bench, Faridkot House
New Delhi.
2. Ex. Constable Harvir Singh
No. 9748/DAP
S/o Shri Dharam Vir
R/o House No. 73, C.P.O. Block
Madangir
New Delhi-110062. ...Respondents
Through: Mr. Arun Bhardwaj, Adv.
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? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported
in the Digest? Yes
WP (C) No. 4001/2001 Page 2 of 11
MADAN B. LOKUR, J.
These are two writ petitions arising out of the same order
dated 26th May, 2000 passed by the Central Administrative Tribunal in
O.A. No. 1471 of 1998.
2. The question for consideration arises in the following
circumstances: An order was passed on 16th April, 1993 in respect of
Harvir Singh under clause (b) of the second proviso to Article 311 (2) of
the Constitution. By this order, a departmental inquiry against him (in
respect of allegations of criminal misconduct) was dispensed with on the
ground that it was not reasonably practicable to hold such an inquiry.
On a challenge being made, the Tribunal upheld this order.
Subsequently, Harvir Singh was acquitted in the criminal cases filed
against him arising out of his alleged criminal misconduct.
The question before us is this: Could the Tribunal set aside
the order dated 16th April, 1993 merely on Harvir Singh's acquittal in
the criminal cases? Our answer to this question is in the negative.
3. At the relevant time, Harvir Singh (hereafter referred to as
the Petitioner) was working with the Delhi Police as a Constable. It was
alleged that he was involved in the theft of several cars. First
Information Reports were registered against the Petitioner in several
such cases and even the stolen cars were alleged to have been recovered
from him. On a consideration of the entire facts and circumstances of
the case, a departmental inquiry against him was dispensed with by his
disciplinary authority by resorting to clause (b) of the second proviso to
Article 311 (2) of the Constitution and he was thereafter dismissed from
service on 16th April, 1993.
4. The Petitioner preferred a departmental appeal against his
dismissal but since it was not decided for quite some time, he preferred
an Original Application before the Tribunal which directed the
Commissioner of Police (hereafter referred to as the Respondents) to
dispose of the departmental appeal within a specified time. The
Respondents eventually dismissed the appeal by an order dated 11th
July, 1994.
5. Feeling aggrieved by the rejection of his departmental
appeal, the Petitioner preferred OA No. 1756/1994 in the Tribunal but
that was dismissed by an order dated 6th January, 1995. Thus the order
dispensing with the inquiry and his dismissal from service attained
finality and even the Petitioner took no further proceedings with regard
to dispensing with the inquiry by his disciplinary authority and his
dismissal from service.
6. Quite separately, in respect of the first information reports
filed against the Petitioner for being involved in the theft of cars, trials
were conducted by the Metropolitan Magistrate and by decisions
rendered, the Petitioner was either discharged or acquitted in the
criminal cases.
7. Based on his discharge/acquittal, the Petitioner made a
representation before the Additional Commissioner of Police on 14th
October, 1997 praying that the order of dismissal be set aside and his
reinstatement in service be ordered. This application was rejected on
12th June, 1998.
8. Feeling aggrieved, the Petitioner preferred OA No.
1471/1998 which came to be allowed by the Tribunal by the impugned
order dated 26th May, 2000. The Tribunal directed the Respondents to
reinstate the Petitioner in service but passed no order with regard to any
consequential benefits being granted to the Petitioner. Consequently,
the Petitioner has challenged the decision of the Tribunal refusing to
grant him consequential benefits by filing WP (C) No. 4001 of 2001 in
this Court.
9. The Respondents are also aggrieved by the same order of the
Tribunal and have challenged the direction for reinstatement by filing
WP (C) No. 2870 of 2001. No interim relief was granted to the
Respondents and we are told that, therefore, they have reinstated the
Petitioner in service and he is presently working with the Delhi Police.
10. The grievance of the Petitioner is limited to the grant of
consequential benefits, that is, back wages, etc. for the period that he
was out of service. In our opinion, the Petitioner is not entitled to any
consequential relief whatsoever. The grievance of the Respondents is
against the direction requiring them to reinstate the Petitioner. The
Respondents are, in our opinion, entitled to the relief prayed for and the
order reinstating the Petitioner in service is liable to be set aside but we
propose to deal with the issue of relief separately.
11. It appears to us that the Tribunal completely misdirected
itself in law. There are effectively two orders passed against the
Petitioner - first, dispensing with a departmental inquiry on the ground
that it is not reasonably practicable to hold it and second, dismissing the
Petitioner from service without an inquiry. Both the orders have attained
finality. The Tribunal could not have reopened the second issue (while
ignoring the first issue, that is, the order dispensing with the
departmental inquiry) and directed the reinstatement of the Petitioner
merely because of his discharge/acquittal in the criminal cases. The
dismissal from service was consequential to dispensing with the
departmental inquiry. The Tribunal completely lost sight of this.
12. The order dispensing with the inquiry as well as the order
dismissing the Petitioner from service operate in an entirely different
field from the criminal cases launched against the Petitioner. Both these
orders attained finality when the Petitioner's OA was rejected by the
Tribunal and he did not challenge that order by filing a writ petition in
this Court. What the Tribunal has done is to effectively set aside both
the orders merely on the ground that the Petitioner has been
discharged/acquitted in the criminal cases filed against him. As
mentioned above, the dismissal of the Petitioner from service was a
consequence of the conclusion that that it was not reasonably
practicable to hold an enquiry. Merely because the Petitioner was
discharged/acquitted in the criminal cases does not mean that the order
of dismissal was bad in law or that the order passed by the Respondents
that it was not reasonably practicable to hold an enquiry was invalid.
This is more so when the correctness of both orders was upheld by the
Tribunal itself. We are of the opinion that the Tribunal has mixed up
two separate issues and has arrived at a wrong result in directing the
reinstatement of the Petitioner in service. If at all the Tribunal could
pass an order in favour of the Petitioner, then it could only be to hold a
departmental inquiry against him - but not an order for reinstatement.
13. We are of the view that the Tribunal could not, in this case,
pass an order for holding a departmental inquiry against the Petitioner.
An order dispensing with a disciplinary inquiry under clause (b) of the
second proviso to Article 311(2) of the Constitution is a solemn exercise
of power by the disciplinary authority. It must not be lightly exercised,
but once it is exercised, it must not be lightly interfered with in view of
clause (3) of Article 311 of the Constitution. In the celebrated decision
in Union of India v. Tulsiram Patel, (1985) 3 SCC 398 the Supreme
Court held in paragraph 130 of the Report that:
"The condition precedent for the application of clause (b) is
the satisfaction of the disciplinary authority that "it is not
reasonably practicable to hold" the inquiry contemplated by
clause (2) of Article 311. ..... What is requisite is that the
holding of the inquiry is not practicable in the opinion of a
reasonable man taking a reasonable view of the prevailing
situation. .... The reasonable practicability of holding an
inquiry is a matter of assessment to be made by the
disciplinary authority. Such authority is generally on the spot
and knows what is happening. It is because the disciplinary
authority is the best judge of this that clause (3) of Article
311 makes the decision of the disciplinary authority on this
question final. A disciplinary authority is not expected to
dispense with a disciplinary inquiry lightly or arbitrarily or
out of ulterior motives or merely in order to avoid the
holding of an inquiry or because the Department's case
against the government servant is weak and must fail...."
14. In our opinion, the Tribunal gave undue importance to the
discharge/acquittal of the Petitioner in the criminal cases filed against
him. It overlooked the fact that a departmental inquiry against the
Petitioner was dispensed with and that this was upheld by the Tribunal
on an earlier occasion. The Tribunal also overlooked the fact that it had
earlier upheld the dismissal of the Petitioner. In the face of this, there
was no occasion for the Tribunal to revisit the order dated 16 th April,
1993 and set it aside. It appears to us that the Tribunal acted more on the
basis of sympathy for the Petitioner rather than on law. In Tulsiram
Patel, the Supreme Court observed:
"[T]his Court must not forget that the object underlying the
second proviso is public policy, public interest and public
good and the Court must, therefore, repel the temptation to be
carried away by feelings of commiseration and sympathy for
those government servants who have been dismissed,
removed or reduced in rank by applying the second proviso.
Sympathy and commiseration cannot be allowed to outweigh
considerations of public policy, concern for public interest,
regard for public good and the peremptory dictate of a
constitutional prohibition."
The impugned order of the Tribunal is clearly erroneous and
deserves to be set aside.
15. Be that as it may, in compliance with the direction of the
Tribunal, the Petitioner has been reinstated in service by the
Respondents. We have not been told of the Petitioner having come to
the adverse notice of the Respondents since his reinstatement. Under
the circumstances, after a gap of fifteen years, we do not think it
appropriate to interfere with the order of reinstatement and direct the
removal of the Petitioner from service. However, we are clearly of the
opinion that in the facts of the case as they stand, no ground is made out
for the grant of any consequential benefits to the Petitioner. On the
contrary, the Petitioner should consider himself fortunate that he has
been reinstated in service.
16. Both the writ petitions are dismissed. No costs.
MADAN B. LOKUR, J
January 13, 2010 MUKTA GUPTA, J
kapil
Certified that the corrected copy of
the judgment has been transmitted
in the main Server.
