Vijay
Singh Vs. Union of India &
Ors [2007] Insc 207 (23 February 2007)
H.K. SEMA & B.SUDERSHAN REDDY
H.K.SEMA,J.
The appellant was head constable in Delhi Police.
He was served with the charge, substance of which reads:- "On 29.3.95 a
case FIR No.236/95 u/s 325/34 IPC PS Sultanpuri was registered by HC Vijay
Singh No.310/NW after the receipt of MLC report of Sh. Nand Kishore. In the
FIR, the HC showed the name of Sh. Ram Raj as an accused including the other
persons. The HC also mentioned that he recorded the statement of Sh. Nand Kishore
on 4.3.95. On scrutiny it was found that there was overwriting in DD No.10,
dated 4.3.95 which was written by the HC on 4.3.95 and is very much visible. As
per procedure HC Vijay Singh, was supposed to enter the statement of Sh. Nand Kishore
in the daily diary on the same day to avoid doubt, but the HC failed to do so
and did not follow the procedure and also made some over writing in daily diary
with ulterior motive."
Admittedly, the charge was framed after a preliminary enquiry was conducted
by PW-4 Sh.Bhairo Singh, ACP Kamla Market, Delhi. An enquiry was conducted by
PW-4 and its report was submitted to DCP/North-West Distt.Delhi on 21.8.95
which was marked as Exhibit PW-4/A.
Many grounds have been urged before us. The principle contention of Mr. Krishnamani,
learned senior counsel is, however, rested on the question of violation of Rule
15(2) of the Delhi Police (Punishment and Appeal) Rules, 1980 ( in short 'the
Rules' ). It is contended by the counsel that Rule 15(2) mandates that in a
case in which a preliminary enquiry discloses the commission of a cognizable
offence, departmental enquiry shall be ordered after obtaining prior approval
of the Additional Commissioner of Police concerned as to whether a criminal case
should be registered and investigated or a departmental enquiry should be held.
He would further contend that in the present case a departmental enquiry was
held preceded by a preliminary enquiry conducted by PW-4 but no prior approval
was obtained from the Additional Commissioner of Police, therefore, the entire
enquiry vitiates. This being the pure question of law, we have directed the
respondent to produce the record as to whether prior approval of the Additional
Commissioner of Police was obtained or not. Mr.Dutta, learned ASG fairly
submitted that the record does not disclose that prior approval of the
Additional Commissioner of Police was obtained. A supplementary affidavit was,
however, filed by one Mr.Ajay Kumar, Deputy Commissioner of Police, Police
Control Room, Delhi. It is averred in paragraph 2 of the supplementary
affidavit that no preliminary enquiry was ordered, hence the prior approval of
the Additional Commissioner of Police as required under Rule 15(2) of the Rules
for conducting departmental enquiry was neither required nor the same was
taken. To say the least, this averment is contrary to the statement of PW-4. A
preliminary enquiry is a fact finding enquiry. Its purpose is (i) to establish
the nature of default and identity of defaulter(s), (ii) to collect prosecution
evidence, (iii) to judge quantum of default and (iv) to bring relevant
documents on record to facilitate a regular departmental enquiry. In the
present case, a preliminary enquiry was conducted by PW-4 himself and a report was
submitted by him, marked as Exhibit PW-4/A during the enquiry.
Sub-rule 2 of Rule 15 reads:
"In cases in which a preliminary enquiry discloses the commission of a
cognizable offence by a police officer of subordinate rank in his official
relations with the pubic, departmental enquiry shall be ordered after obtaining
prior approval of the Additional Commissioner of Police concerned as to whether
a criminal case should be registered and investigated or a departmental enquiry
should be held".
A cursory reading of sub-rule 2 would clearly show that the said Rule is
mandatory. It has to be followed strictly in letter and spirit.
To appreciate the present controversy in proper perspective Rule 15(1) &
(2) of the Rules are reproduced:
-
"Preliminary enquiries
-
A preliminary enquiry is a fact
finding enquiry. Its purpose is
-
to establish the nature of default and identity of defaulter(s),
-
to collect prosecution evidence,
-
to judge quantum of default and
-
to bring relevant documents on record
to facilitate a regular departmental enquiry. In cases where specific
information covering the above-mentioned points exists a Preliminary Enquiry
need not be held and Departmental enquiry may be ordered by the disciplinary
authority straightaway. In all other cases, a preliminary enquiry shall normally
precede a departmental enquiry.
-
In cases in which a preliminary
enquiry discloses the commission of a cognizable offence by a police officer of
subordinate rank in his official relations with the pubic, departmental enquiry
shall be ordered after obtaining prior approval of the Additional Commissioner
of Police concerned as to whether a criminal case should be registered and
investigated or a departmental enquiry should be held".
-
"
A reading of Rule 15(1)&(2) together and the language employed therein
clearly discloses that a preliminary enquiry is held only in cases of
allegation, which is of weak character and, therefore, a preliminary enquiry is
to be held to establish the nature of default and identity of defaulter; to
collect the prosecution evidence; to judge quantum of default and to bring
relevant documents on record to facilitate a regular departmental enquiry. In
cases, where specific information is available, a preliminary enquiry is not
necessary and a departmental enquiry may be ordered by the disciplinary
authority straightaway. It is because of this reason sub-rule 2 of Rule 15 is
couched in such a way as a defence to the delinquent officer. The Additional
Commissioner of Police being higher in hierarchy next to DGP, the requirement
of his approval is mandatory, so that the delinquent officer is not prejudiced
or harassed unnecessarily in a departmental enquiry. Such approval, if any,
must also be accorded after due application of mind. It is a case of violation
of mandatory provisions of law. Therefore, the appeal must succeed. The
appellant was dismissed by an order dated 21.1.1998 preceded by an enquiry. The
order of dismissal is set aside. The appellant shall be re-instated forthwith.
The orders of the Appellate Authority, the Revisional Authority and the High
Court are set aside.
This takes us to consider as to what relief the appellant is entitled to.
The appellant was dismissed on 21.1.1998 and since then he is out of service
till date. The appellant would be attaining the age of superannuation on March 31, 2012.
Having regards the facts and circumstances of this case and the nature of
misconduct that is alleged to have been committed by the appellant as a police
officer and applying the principle of 'no work no pay' he shall not be entitled
to back wages from 21.1.1998 till re-instatement. Also keeping in view the
nature of misconduct said to have been committed by the appellant, as a police
officer, this order would not preclude the disciplinary authority to initiate a
fresh proceeding from the stage of obtaining prior approval of the Additional
Commissioner of Police, if so advised. In the event of the authority so decide
to hold fresh enquiry from the stage of obtaining prior approval from
Additional Commissioner of Police, they may resort to the principle laid down
by this Court in paragraph 31 in Managing Director, ECIL, Hyderabad &
Ors. v. B. Karunakar & Ors. (1993) 4 SCC 727. Subject to the aforestated
observation, this appeal is allowed. No costs.
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