Delhi High Court
Rajpal Singh vs Commissioner Of Police & Ors. on 12 October, 2022
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 12th October, 2022
+ W.P.(C) 11727/2019
RAJPAL SINGH ..... Petitioner
Through: Mr. M. K. Bhardwaj and Ms. Alisha
Saini, Advocates.
versus
COMMISSIONER OF POLICE & ORS. ..... Respondents
Through: Mrs. Avnish Ahlawat, Standing
Counsel for GNCTD with Mr. Nitesh
Kr. Singh, Ms. Laavanya Kaushik and
Ms. Aliza Alam, Advocates.
CORAM:
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL
HON'BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI
J U D G M E N T
ANUP JAIRAM BHAMBHANI J.
REVIEW PET. No. 248/2022
By way of the present petition under Order XLVII Rules 1 and
2 read with section 151 of the Code of Civil Procedure, 1908 ('CPC'
for short) the petitioner seeks review of order dated 06.11.2019 made
in the matter, whereby this court had disposed of the writ petition in
the following terms :
"9. After some hearing, learned counsel for the petitioner submits
that the petitioner would not contest the matter on merits if the
Appellate Authority is directed to reconsider the order of
punishment, having regard to the fact that the petitioner had an
unblemished service record of 25 years of service on the date of
dismissal. It is also urged that the petitioner is the sole bread-earner
in a family comprising a wife and three children, including one
school going daughter. Petitioner has no other source of livelihood
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and in case the order of dismissal is not modified, the family of the
petitioner would seriously suffer.
******
11. We have heard learned counsels for the parties.
12. Since the matter is not pressed on merits, we dispose of the writ
petition with liberty to the petitioner to make a representation to the
Appellate Authority; and while disposing of the representation, the
Appellate Authority is directed to take into consideration the
previous service record of the petitioner; the fact that he was
acquitted in the criminal case; and the fact that a young family is
dependent entirely on the petitioner.
13. We make it clear that any order passed on the representation
will not give to the petitioner a fresh cause of action."
(emphasis supplied)
2. Mr. M. K. Bhardwaj, learned counsel appearing on behalf of the
review petitioner submits that the Appellate Authority has failed to
reconsider the order of punishment as was directed by this court,
inasmuch as the Appellate Authority has not appreciated that the
petitioner had an unblemished record of 25 years of service and that
he is the sole breadwinner of the family comprising a wife and three
children and has no other source of livelihood. It is submitted that
consequently, the petitioner's family would suffer seriously since the
order of dismissal is not modified.
3. Mr. Bhardwaj further submits, that in view of the observation made
by this court in the order under review, to the effect that any order
passed on the petitioner's representation will not give to him a fresh
cause of action, the petitioner is also now unable to challenge the
decision taken by the Appellate Authority.
4. Issue notice.
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5. Mrs. Avnish Ahlawat, learned Standing Counsel for GNCTD appears
on advance copy; and accepts notice.
6. We have heard Mr. Bhardwaj at-length on the review petition. We
have also heard Mrs. Ahlawat in opposition.
7. Mr. Bhardwaj's main contention is that the Appellate Authority has
not considered or decided the petitioner's representation in
accordance with the mandate of order dated 06.11.2019, which was
the basis for the petitioner not contesting the matter on merits and for
disposal of the writ petition. Counsel submits that the Appellate
Authority has failed to appreciate the long and unblemished service
put-in by the petitioner; nor has the Appellate Authority given due
consideration to the fact that the petitioner was acquitted in the
criminal case filed against him; nor has the Appellate Authority taken
a sympathetic view of the disproportionate punishment meted-out to
the petitioner in the backdrop of the fact that the petitioner has to
support a wife and three children, with no other source of livelihood.
8. On the other hand, Mrs. Ahlawat points-out that consequent upon
disposal of the writ petition by order dated 06.11.2019, the
department duly considered and decided the petitioner's
representation vide order dated 31.01.2020; whereafter the petitioner
also preferred before this court an application bearing CM APPL. No.
14454/2022 purporting to seek directions "... to execute the order
dated 06.11.2019 in WP(C) No. 11727/2019 in true letter and spirit";
which was subsequently withdrawn vide order dated 24.03.2022; and
now the petitioner has filed the present review petition on 24.09.2022
after more than 1000 days of the impugned judgment.
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9. That apart, Mrs. Ahlawat submits that a perusal of order dated
31.01.2020 will show that the Appellate Authority has reconsidered
the petitioner's case, taking due notice of the petitioner's past service;
his acquittal in the criminal matter; as also the fact that the petitioner
has (had) a young family to support. In these circumstances,
Mrs.Ahlawat submits that no ground is made-out for review of order
dated 06.11.2019.
10. We have considered the averments made in the petition; have
carefully perused the order made on the petitioner's representation by
the Appellate Authority; and have also weighed the rival contentions
of the parties.
11. Order dated 31.01.2020 made by the Commissioner of Police
(Operations), Delhi Police on the representation made by the
petitioner inter-alia records as follows :
"Consequently, Ex. Constable Raj Pal Singh, No. 3516/PCR has
submitted his representation dated 11.12.2019 in which he pleaded
that the criminal case was registered on the same allegations on
which the departmental enquiry was ordered against him vide order
dated 18.05.2012 and in the said criminal case he has been
acquitted vide judgement dated 30.01.2017 for want of any evidence
against him, the penalty order deserves to be set aside in the interest
of justice and keeping in view the law laid down by the Hon‟ble
Supreme Court in the case of Captain M. Paul Anthony Vs. Bharat
Gold Mines, JT 1999 (2) 456. He has never been subjected to any
major penalty on account of commission of any misconduct, except
the impugned proceedings made basis to impose penalty of
dismissal from service. His unblemished service of more than 25
years speaks volume about his honesty, sincerity and devotion to
duty. Just one unfortunate incident which happened with him due to
misconception of raiding party could not have been made basis to
impose extreme penalty of dismissal. Because after dismissal from
service, not only he, but his entire family has suffered a lot. It has
become difficult for him to meet both ends of his family and his
young daughter who has just passed 12th and approaching
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marriageable age may also be affected in case indulgence is not
shown by the Appellate Authority. The Hon‟ble High Court has also
viewed that the competent Appellate Authority shall consider the
effect of said acquittal in criminal case, unblemished service of 25
years and the dependents in the family including young daughter.
He has further prayed to set aside the dismissal order and give him
another chance to serve in Delhi Police to prove his worth by
rendering honest and sincere service.
******
"I have perused the entire record available on file. The
plea/contentions put-forth by the representationist are not
acceptable. 25 years of unblemished service record, if presumed,
does not give a license to indulge in misconducts. He has been
awarded a Censure in the past for riding without number plate,
which is very unusual for a policeman to do. In the present case too,
he was caught alongwith his associates in a Maruti Car in which 11
Carton/Boxes of illicit liquor with labels of Bonny Scott Special
Malted Whisky for sale in Rajasthan (total 528 quarters of illicit
liquor) were recovered. In the said Maruti Car, he was sitting in the
driver seat. Accordingly, a case FIR No. 671/03 u/s 61/1/14 Excise
Act, PS Mangol Puri, Delhi was registered against the
representationist and his associates. In the case of Kendriya
Vidyalaya Sangathan & Ors. Vs. T. Sriniwas (AIR 2004 SC, 4127),
the Hon‟ble Supreme Court has held that the standard of proof, the
mode of enquiry and the rules governing the enquiry and trial in
both the cases are distinct and different. Although, he has been
acquitted in the criminal case by the Hon‟ble Trial Court but during
in-house enquiry, the charges are fully proved against the
representationist. Being a member of disciplined police force, his
prime duty was to protect crime but contrary to this he misused his
official position and mixed up with the bootleggers for smuggling
the illicit liquor. His connivance with the bootleggers duly proved
during the course of DE proceedings clearly indicates that he had
committed gravest act of misconduct and involves moral turpitude
which is unpardonable. The acquittal in the case has been made as
the Judge has recorded that "prosecution has failed to prove its
case against the accused beyond reasonable doubt. Accused are
entitled to the benefit of doubt".
*****
"The other fact that a young family is dependent entirely on the
representationist, tolerating a grave misconduct such as smuggling
of liquor by a policeman, due to his young family, will send a wrong
message to the entire force.
"Therefore, keeping in view the overall circumstances I do not find
any mitigating circumstances to differ with the reasoned and
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comprehensive punishment order passed by the disciplinary
authority. Hence, the representation submitted by Ex. Constable Raj
Pal Singh, No. 3516/PCR (PIS No.28883729) is hereby rejected."
(emphasis supplied)
12. At this point it would be beneficial to recount the principles governing
review of an order as enunciated by the Hon'ble Supreme Court in
Ram, Sahu (Dead) Through LRs & Ors. vs. Vinod Kumar Rawat &
Ors.1:
"26. In the case of Haridas Das v. Usha Rani Banik (Smt.), (2006) 4
SCC 78 while considering the scope and ambit of Section 114 CPC
read with Order 47 Rule 1 CPC it is observed and held in
paragraph 14 to 18 as under:
"14. In Meera Bhanja v. Nirmala Kumari Choudhury,
(1995) 1 SCC 170 it was held that:
"8. It is well settled that the review proceedings are
not by way of an appeal and have to be strictly
confined to the scope and ambit of Order 47 Rule 1
CPC. In connection with the limitation of the powers
of the court under Order 47 Rule 1, while dealing
with similar jurisdiction available to the High Court
while seeking to review the orders under Article 226
of the Constitution, this Court, in Aribam Tuleshwar
Sharma v. Aribam Pishak Sharma, (1979) 4 SCC 389
speaking through Chinnappa Reddy, J. has made the
following pertinent observations:
„It is true there is nothing in Article 226 of
the Constitution to preclude the High Court
from exercising the power of review which
inheres in every court of plenary jurisdiction
to prevent miscarriage of justice or to correct
grave and palpable errors committed by it.
But, there are definitive limits to the exercise
of the power of review. The power of review
may be exercised on the discovery of new
and important matter or evidence which,
after the exercise of due diligence was not
within the knowledge of the person seeking
the reviewor could not be produced by him at
2020 SCC OnLine SC 896
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the time when the order was made; it may be
exercised where some mistake or error
apparent on the face of the record is found,
it may also be exercised on any analogous
ground. But, it may not be exercised on the
ground that the decision was erroneous on
merits. That would be the province of a court
of appeal. A power of review is not to be
confused with appellate power which may
enable an appellate court to correct all
manner of errors committed by the
subordinate court.‟""
******
"34. To appreciate the scope of review, it would be proper for this
Court to discuss the object and ambit of Section 114 CPC as the
same is a substantive provision for review when a person
considering himself aggrieved either by a decree or by an order of
Court from which appeal is allowed but no appeal is preferred or
where there is no provision for appeal against an order and decree,
may apply for review of the decree or order as the case may be in
the Court, which may order or pass the decree. From the bare
reading of Section 114 CPC, it appears that the said substantive
power of review under Section 114 CPC has not laid down any
condition as the condition precedent in exercise of power of review
nor the said Section imposed any prohibition on the Court for
exercising its power to review its decision. However, an order can
be reviewed by a Court only on the prescribed grounds mentioned
in Order 47 Rule 1 CPC, which has been elaborately discussed
hereinabove.An application for review is more restricted than that
of an appeal and the Court of review has limited jurisdiction as to
the definite limit mentioned in Order 47 Rule 1 CPC itself. The
powers of review cannot be exercised as an inherent power nor
can an appellate power can be exercised in the guise of power of
review."
(emphasis supplied)
13. As discussed above, the writ petition was disposed-of granting to the
petitioner liberty to make a representation to the Appellate Authority
limited to reconsidering the order of punishment meted-out to the
petitioner, viz. the order dismissing him from service. Since this order
was made upon the petitioner urging that he would not contest the
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matter on merits if the Appellate Authority would reconsider his
representation as regards the punishment awarded, this court also
expressly recorded that the order passed on such representation would
not give to the petitioner a fresh cause of action.
14. The petitioner has not placed before the court any new material, fact
or evidence that may not have been within his knowledge earlier-on;
or that may have escaped the attention of the court; or that may be
seen as a mistake or error apparent on the face of the record.
15. Though section 114 and Order XLVII of the Code of Civil Procedure,
1908 do not per-se apply to proceedings under Article 226 of the
Constitution of India, the principles enumerated therein would apply;
but even so, we do not see any error apparent on the face of the
record; nor any new and important material having become available
subsequently, necessitating a re-look into the matter; nor any other
manifest error or failure of the court to consider the material on
record.
16. In our opinion therefore, no ground or basis is made-out for review of
order dated 06.11.2019 made in the matter.
17. The present review petition is accordingly dismissed; without
however, any order as to costs.
SIDDHARTH MRIDUL, J
ANUP JAIRAM BHAMBHANI, J
OCTOBER 12, 2022/ds
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