Sub-Inspector Ranvir Singh vs Union Of India & Ors.
2010 Latest Caselaw 3351 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI


%                                                          Date of decision: 19.07.2010

+                               WP (C) No.7521 of 1999


SUB-INSPECTOR RANVIR SINGH                                  ...PETITIONER
                   Through:                     Mr. R.V. Nair & Mr. Ranjit Kumar,
                                                Advocates.


                                          Versus


UNION OF INDIA & ORS.                                        ...RESPONDENTS
                    Through:                    Ms. Avnish Ahlawat,
                                                Ms. Latika Chaudhary, Ms. Simran &
                                                Mr. Nitesh Singh, Advocates.


CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE VALMIKI J. MEHTA

1.        Whether the Reporters of local papers
          may be allowed to see the judgment?           No

2.        To be referred to Reporter or not?            No

3.        Whether the judgment should be
          reported in the Digest?                       No


SANJAY KISHAN KAUL, J. (Oral)

CM No.14093/2009

The petitioner has filed the application for permission to file the order

dated 12.11.1998 passed by the Lieutenant Governor of Delhi imposing the

penalty of dismissal from service.

The application is allowed.

+ WP (C) No.7521/1999

1. The petitioner was working as Sub-Inspector with the Delhi Police.

The Government of NCT of Delhi initiated disciplinary proceedings _____________________________________________________________________________________________

under Rule 14 of the Central Civil Services (Classification, Control &

Appeal) Rules, 1965 (hereinafter referred to as the said Rules) against

the petitioner on 16.2.1995 which resulted in the petitioner being held

guilty and the imposition of penalty of dismissal from service vide

order dated 12.11.1998. The petitioner unsuccessfully challenged the

order of disciplinary authority before the Central Administrative

Tribunal (for short 'CAT') which dismissed the petition vide order

dated 3.11.1999. It is this order which is sought to be challenged in

the present writ petition under Article 226 of the Constitution of

India.

2. The charge against the petitioner is that while one under-trial Dayal

Singh was in the custody of police and under the control of the

petitioner, he died because of torture by the petitioner. The body

injuries are stated to have been caused to Dayal Singh by the

petitioner in police custody. The postmortem report dated 20.9.1996

was relied upon and an FIR was registered under Section 302 of the

IPC. The Lieutenant Governor gave sanction for prosecution and

proceedings started in the criminal court but the Sessions court vide

order dated 17.12.1994 acquitted the petitioner.

3. The State filed an appeal against the order of acquittal. The

development subsequent to filing of the writ petition is that the said

criminal appeal, being Crl. A. No.176/1995, was allowed on

15.1.2010 and the petitioner has been convicted for the offence of

culpable homicide not amounting to murder under Section 304 Part I

of the IPC. A sentence of imprisonment of 10 years has been

imposed upon the petitioner. Learned counsel for the petitioner states _____________________________________________________________________________________________

that this order has been challenged before the Supreme Court where

the appeal has been admitted and the sentence suspended.

4. The petitioner was also proceeded against departmentally as stated

aforesaid. The grievance of the petitioner both before the CAT and

before this Court is that the order dated 16.2.1995 is vitiated because

it has not been passed by the Lieutenant Governor nor has the

initiation of departmental proceedings been sanctioned by him. The

submission in the nutshell is that there has been no delegation of

power to any other authority under Section 147 of the Delhi Police

Act, 1978.

5. The CAT has extracted the article of charges issued against the

petitioner in para 8 which showed that the chargesheet against the

petitioner related to the custodial death of Shri Dayal Singh. The

record showed that the proposal to take regular departmental

proceedings against the petitioner were in pursuance to the notes

signed by the Chief Secretary, Delhi Administration and the

Lieutenant Governor vide order dated 27.3.1990 had accorded the

sanction under Section 197 (3) of the Cr.P.C. The punishment has

also been imposed by the Lieutenant Governor who is the competent

authority. The question, thus, which arose was whether the absence

of approval by the Lieutenant Governor for disciplinary proceedings

though the approval was obtained from the Chief Secretary would

vitiate the departmental proceedings.

6. The impugned memorandum initiating disciplinary proceedings was

issued on 28.5.1990. The petitioner did not raise any objection to

that memorandum and took part in the departmental proceedings. _____________________________________________________________________________________________

The grievance was raised to impugn the penalty order passed by the

Lieutenant Governor. It was, thus, found that the petitioner is

deemed to have waived his right of protest against the order issued by

the Chief Secretary directing him to take disciplinary action against

the petitioner. It has also been found that no prejudice had been

caused to the petitioner and there should not be automatic setting

aside of the order on this ground. The Tribunal has rightly relied

upon the relevant observations of the Supreme Court in the case of

State Bank of Patiala Vs. S.K. Sharma JT 1996 (3) SC 722 that since

no prejudice has been shown the procedural provision can be waived.

The Supreme Court recently in the case of H.V. Nirmala Vs.

Karnataka State Financial Corporation 2008 (7) SCC 639 has held

that the charged officers on the principles of estoppel can be

prevented from questioning the constitution of the inquiry authority

once he has participated in the inquiry without any protest.

7. We are in agreement with the aforesaid view especially since there

has been no case of any lack of reasonable opportunity to the

petitioner to present his case and the violation of the procedural

provisions contained in Rule 18 (1) of the said Rules cannot result in

automatic setting aside of the punishment order. Sanction has been

given in the present case by the Chief Secretary though not by the

Lieutenant Governor who has passed the punishment order as the

disciplinary authority. The sanction for initiating the criminal case

was also granted by the Lieutenant Governor and who also has

passed the penalty order in the present case.

_____________________________________________________________________________________________

8. We are also unable to persuade ourselves to accept the request of the

petitioner that this writ petition should be kept pending to await the

decision of the Supreme Court in the appeal filed against conviction.

The scope and ambit of the criminal trial and the disciplinary

proceedings are separate though the cause may be the same. In a

criminal case the charge must be proved not on preponderance on

evidence but beyond reasonable doubt. This norm could not be

applicable to a disciplinary proceeding. Not only that, disciplinary

proceedings are not based on the judgement of the criminal court but

have been separately carried out where evidence has been recorded of

witnesses and a conclusion drawn on the basis of the material on

record.

9. The aforesaid being the only two aspects urged before us and keeping

in mind the fact that this Court, in any case, does not sit as a court of

appeal over the orders of disciplinary authorities and the order not

being vitiated on any settled legal principle, we see no reason to

exercise jurisdiction under Article 226 of the Constitution of India.

10. Dismissed.

SANJAY KISHAN KAUL, J.

JULY 19, 2010                                           VALMIKI J. MEHTA, J.
b'nesh

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