Ranbir Singh vs Government Of Nct Of Delhi & Ors.
2011 Latest Caselaw 510 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          W.P. (Civil) No. 1508 of 1997

%                          Date of Decision: 28.01.2011

Ranbir Singh                                                .... Petitioner

                       Through   Mr.G.D.Gupta, Sr. Advocate with
                                 Mr.Vikram Saini, Advocate


                                    Versus


Government of NCT of Delhi & Ors.                          .... Respondents

                       Through   Mr.V.K.Tandon, Advocate


CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE MOOL CHAND GARG

1.    Whether reporters of Local papers may be                  YES
      allowed to see the judgment?
2.    To be referred to the reporter or not?                     NO
3.    Whether the judgment should be reported in                 NO
      the Digest?


ANIL KUMAR, J.

*

1. The present petition is filed under Article 226 of the Constitution

of India for the issuance of a writ in the nature of certiorari for quashing

the impugned order dated 18.05.1995; 06.02.1996 and 28.01.1997,

thus, praying that the petitioner be reinstated in the services forthwith,

as per his seniority status along with all the consequential benefits

which follow from such reinstatement as per his entitlement at the

seniority level.

2. The petitioner was enlisted as Constable (driver) with No. 4B

52/DAP (PIS No. 28824045). It was alleged against him that on the night

intervening 20/21.08.1993, as Motor Cycle rider, he took the

Government vehicle No. DBL- 2661 from M T Park V Battalion DAP after

collecting the keys from the drivers‟ barrack kept by Constable (driver)

Bani Singh and went to Hauz Quazi with some ulterior motive along with

another person who could not be identified. There he intercepted Truck

No. USC-8265 at Chawri Bazar Nukkar and demanded entry money from

the driver of the truck. On being seen and approached by SHO Hauz

Quazi, he escaped from the scene and while fleeing from scene he hit a

cycle rickshaw also. Though he was chased by the Police Control Room

Staff, he could not be apprehended at that time.

3. An enquiry was held against the petitioner on these allegations in

accordance with rules and regulation and he was given a personal

hearing. It was held by the Disciplinary Authority that the charges

against the petitioner were made out. Consequently he was awarded

punishment of withholding his one annual increment on temporary

basis and treating the suspension period from 26.08.1993 to 28.04.1995

as "not spent on duty" vide order dated 18.05.1995.

4. Against the order dated 18.05.1995, the petitioner filed an appeal

to the Appellate Authority. The Appellate Authority served a show cause

notice dated 26.10.1995 upon the petitioner for enhancement of

punishment exercising its powers vested in Rule 25(B) (iii) of Delhi Police

(Punishment & Appeal) Rules, 1994. After considering the reply to the

show cause notice and the appeal of the petitioner, the Appellate

Authority instead of setting aside the punishment awarded by the

disciplinary authority, awarded enhanced punishment of removal from

service by impugned order dated 06.02.1996 on account of grave

misconduct, indiscipline and irresponsibility on the part of the

petitioner.

5. Aggrieved by the impugned order dated 6th February, 1996

awarding the punishment of removal from service, the petitioner filed an

application under section 19 of the Administrative Tribunal's Act to the

Central Administrative Tribunal contending that the Appellate Authority

ignored all the norms of justice and the order passed by him is not

sustainable in the facts and circumstances and in law. He also

contended that in the show cause notice, there was no mention of his

appeal and his appeal had not been placed before the competent

authority and considered by him.

6. The Tribunal dismissed the petitioner‟s application holding that

there are no grounds for review of order of the Appellate Authority

relying on Supreme Court‟s decisions in UOI & Ors. V Upendra Singh

(1994) 27 ATC 200; H B Gandhi, Excise & Taxation Officer-cum-

Assessing Authority, Karnal V Gopi Nath & Sons 1992 Supp. (2) SCC

312 where it was held that:

"The purpose of judicial review is to ensure that the individual receives fair treatment and not to ensure that the authority after according fair treatment reaches, on a matter which it is authorized by law to decide, a conclusion which is correct in the eyes of the Court. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made."

7. Against the order of the Tribunal dismissing his original

application against the order of the Appellate Authority, the petitioner

filed the present writ petition on 31.03.1997 contending inter alia that

the order of the Tribunal and its findings are perverse and bad in law.

The petitioner pleaded that the Rule 25(B) (iii) of Delhi Police

(Punishment & Appeal) Rules, 1994, under which the show cause notice

was issued to him by the appellate authority for enhancement of

punishment and order of removal from service, has been struck down as

ultra vires by this Court. The petitioner relied upon the Head Constable

Rajpal Singh & Ors.etc v. Union of India & Ors, decided by the Full

Bench of the Central Administrative Tribunal, Principal Bench, New

Delhi by order dated 14th September, 2000 holding that section 25 B of

the Delhi Police (Punishment & Appeal) Rules, 1994 was ultra vires. The

petitioner also relied on the order dated 17th September, 2002 passed by

this Court in CWP 2265 of 2001 upholding the decision of the Tribunal

holding that the said rule is ultra vires. Reliance has also been placed

on Ex- Constable Brij Bhushan No. 2406/DAP v. Union of India & Ors.,

W.P. (Civil) No. 6437 of 1999, decided by this High Court vide order

dated 21st August, 2007 upholding the striking down of Rule 25(B) of

Delhi Police (Punishment & Appeal) Rules, 1994 and repelled the plea

that holding the said rule as ultra vires would be prospective. An appeal

being Civil Appeal 8301/ 2008 was also filed in the Supreme Court

against the order of the High Court striking down rule 25 B of Delhi

Police (Punishment & Appeal) Rules, 1994 which was also dismissed by

order dated 9th July, 2008 by the Apex Court.

8. On the basis of these subsequent developments whereby the rule

under which the punishment of the petitioner was enhanced to removal

from service was held to be ultra vires, the petitioner was allowed to take

this as additional grounds in his application No. C.M. No.1475 of 2010.

9. The Learned counsel for the respondent states that if the removal

of the petitioner is set aside on the ground of striking down Rule 25(B)

(iii) of Delhi Police (Punishment & Appeal) Rules, 1994, the department

would be burdened with heavy financial liability of back wages despite

the fact that the challenge to the penalty of withholding of increment on

temporary basis, would still be pending.

10. Learned counsel for the petitioner, however, on instructions, states

that in case the order of removal is set aside, the petitioner shall not

claim the back wages from 06th February, 1996, the day the order of

removal was passed by the Appellate Authority exercising the power of

review under the Rule 25B (iii) of Delhi Police (Punishment & Appeals)

Rules 1994.

11. This Court has heard the learned counsel for the parties. Learned

counsel for the respondents has not disputed that Rule 25B (iii) of Delhi

Police (Punishment & Appeals) Rules 1994 was struck down by a

division bench of this High Court as ultra vires which order has become

final. The impugned order dated 06th February, 1996 was passed by the

Appellate Authority in exercise of its power of review under Rule 25B (iii)

of Delhi Police (Punishment & Appeals) Rules 1994. Since that rule has

been held to be ultra virus, the order dated 06th February, 1996 passed

in exercise of the powers conferred under the said rule for the removal of

the petitioner from the service cannot be sustained. Thus, the order of

removal dated 06th February, 1996 is liable to be set aside in the facts

and circumstances.

12. Since the order of removal dated 06th February, 1996 is liable to be

set aside, the petitioner will be entitled for re-instatement and all the

increments and promotions in accordance with the law till the date of his

as, the learned counsel for the petitioner has pointed out that the

petitioner has already reached the age of superannuation.

13. In the circumstances, the point for consideration is whether the

petitioner shall be entitled for back wages or not. The learned counsel for

the respondents contends that considering the rules of „No Work No Pay‟,

the petitioner shall not be entitled for back wages especially in view of

the penalty awarded to the petitioner by the Disciplinary Authority of

withholding one increment on temporary basis.

14. An application being CM No.1475/2010 has also been filed by the

petitioner contending that he is ready to forego the back wages provided,

the respondents are ready to put a quietus to any further litigation by re-

instating the petitioner. Pursuant to the application by the petitioner, no

statement was given on behalf of the respondents agreeing to his

proposal, rather a reply dated 26th February, 2010 was filed, contending

inter-alia, that vide Circular No.21038-21108/CR-I(PHQ)dated

28.05.2001, it was directed that pursuant to the decision of striking

down Rule 25B (iii) of Delhi Police (Punishment & Appeals) Rules 1994,

the Rule 25A pertaining to revision also has no legal force. The relevant

circular is as under:-

On receipt of C.A.T.‟s judgment dated 14.09.2000, with L.A to C.P.Delhi and it was decided that Rule 25-A „Revision‟ has also no legal force, in view of C.A.T‟s decision dated 14.9.2000. Hence, no revision petition can lie to the Commissioner of Police, Delhi. Since, the Commissioner of Police, Delhi has no longer revisionary powers, the petitioners in future will be at liberty to move the court after having his/her first appeal considered and rejected by the appellate authority against the order of disciplinary authority. So far as appeals to the C.P.Delhi against the punishment orders of

Addl.Cs.P./ Jt.Cs.P./ Spl.Cs.P., are concerned, the same will continue to be entertained in PHQ as per the existing Rule 23 of Delhi Police (Punishment & Appeal) Rules, 1980.

15. The learned counsel for the respondents further contended that

consequent to the said circular, the appeal of the petitioner against the

order dated 18th May, 1995 and show cause notice dated 26th October,

1995 challenging the order passed by the Disciplinary Authority is to be

decided in accordance with law. The learned counsel for the respondents

also contended that in view of the above noted circular, no further

concession is to be given by the respondents.

16. The circular relied on by the respondents is about Rule 25A of

Delhi Police (Punishment & Appeals) Rules 1994. The case of the

petitioner pertains to Rule 25B (iii) of Delhi Police (Punishment &

Appeals) Rules 1994.

17. The learned counsel for the petitioner, on instructions, states that

the appeal filed by the petitioner against the imposition of penalty by the

Disciplinary Authority would also be not pressed. If the appeal of the

petitioner is not pressed before the Appellate Authority, then nothing

further will survive in case of the petitioner as in terms of the above

noted circular, no revision petition would lie to the Commissioner of

Police Delhi, nor power conferred under those provision could be

exercised enhancing the punishment to removal from service against the

order of the punishment of stoppage of one increment on temporary

basis by the disciplinary authority.

18. Since the learned counsel, on instructions, has contended that the

petitioner would also not challenge the order of the Disciplinary

Authority dated 18th May, 1995 awarding punishment of withholding of

one annual increment on temporary basis and treating the suspension

period from 26th August, 1993 to 28th April, 1995 as not spent on duty

and, has also fairly conceded to forgo the back wages, the petitioner

shall be entitled for reinstatement when he was removed from service till

the age of his superannuation.

19. In view of the above discussion, in conformity with the judgment

passed by this Hon‟ble Court in Head Constable Rajpal Singh (supra)

and Ex- Constable Brij Bhushan (supra), we find Rule 25 (B) (iii) of Delhi

Police (Punishment & Appeal) Rules as ultra vires If the rule under

which the penalty of removal from service has been held to be ultra

vires, the punishment for removal from service against the petitioner

cannot be sustained and the punishment of removal from service is

liable to be struck down. Thus being struck down as ultra vires, the

exercise of powers of review by the Appellate Authority in enhancing the

punishment and dismissing the petitioner from services is erroneous.

20. For the foregoing reasons, the impugned order dated 06th

February, 1996 passed by the Appellate Authority removing the

petitioner from the service is set aside and the petitioner is re-instated in

service from 06th February, 1996. The petitioner shall be entitled for all

the increments and promotions in accordance with the law till date of his

superannuation. However, the petitioner shall not be entitled for any

back wages as have been given up by the learned counsel for the

petitioner on instruction from the petitioner. The petitioner shall also be

entitled for all his pensionary and retiral benefits due to the petitioner

which be computed forthwith and the pension and other retiral benefits

be paid to the petitioner within three months. With these directions, the

writ petition is allowed. The parties are, however, left to bear their own

costs.

ANIL KUMAR, J.

January 28, 2011. MOOL CHAND GARG, J.

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