Full Judgment
He has also impugned the order dated 27.5.98 passed by the Commissioner of Police rejecting his representation against the order of punishment.
2. The facts of the case in brief are that the applicant was involved in a criminal case under Section 9 of Opium Act of the Essential Services Maintenance Act (ESMA, for short) decided on 28.1.97. He was placed under suspension on 7.7.81 and was directed to attend roll call.
Subsistence allowance of the applicant was also reduced to l/3rd of his pay since 1981.
3. According to the applicant he was insisted by the respondents to attend roll call during the period of suspension. He has been issued show cause notice for remaining absent from duty. Subsequently he proceeded on 20 days special leave with effect from 11.10.84 and was due back on 31.10.84. As he did not turn up for duty he was marked absent vide DD No. 122 dated 31.10.84. He resumed back duty on 16.7.86 after absenting for a period of 623 days. In the meanwhile the applicant was allegedly involved in a criminal case under 7 of ESMA vide FIR No. 473 dated 19.12.85 and his suspension was continued. A departmental enquiry (DE, for short) was ordered against the applicant during the pendency of the criminal case on 29.8.86. The request of the applicant for dropping DE was rejected by the respondents. Applicant was charged for grave misconduct of unauthorisedly absenting from duty during the period of suspension. Applicant in his defence produced medical records to show that during the period of absence he was suffering from pulmonary heart problem and was under treatment and further contended that from time to time he informed the department and submitted his medical records. The Enquiry Officer (EO, for short) in his finding on 27.2.87 held the applicant guilty of the charge. The disciplinary authority (DA, for short) issued show cause notice to the applicant on 20.3.87. Tentatively agreeing with the finding of the EO proposed punishment of dismissal. Ultimately the DA vide order dated 18.6.87 confirmed the punishment of dismissal on the ground that the applicant had unauthorisedly absented during the period of suspension and was also involved in criminal activities.
4. According to the applicant he preferred an appeal against the order of dismissal on 16.7.87. In the meanwhile, vide order dated 16.11.88 he has been acquitted on merit in FIR No. 19/81 by the Additional Chief Metropolitan Magistrate. He had sent a copy of the acquittal to the appellate authority but no order has been passed by the latter.
Applicant further contended that vide order dated 28.1.97 he was also acquitted from the charges ynder Section 7 of ESMA by the court of Metropolitan Magistrate, Delhi. He had also sent a copy of that order to the appellate authority but no order has been passed by him.
Applicant further contended that he had filed OA No. 648/98 before this Tribunal by order dated 27.3.98 the respondents were directed to dispose of applicant's appeal if his contention regarding filing of the appeal is found to be correct.
5. The appellate authority vide order dated 12.6.98 stated that the applicant has failed to show any proof of filing appeal, as such in the absence of any appeal the appellate authority has not passed any order.
Applicant thereafter made a representation to the Commissioner of Police and vide order dated 27.5.98 his representation was rejected on the ground that he has not preferred any appeal against the punishment order which was passed on unauthorised absence, the same is not entertainable at this belated stage. His representation was however been entertained on merit and it has been stated that acquittal in the criminal case has nothing to do with the dismissal. Applicant has impugned all these orders in the present OA.6. The applicant has challenged the orders on the ground that order of dismissal is illegal as he remained absent during the period of suspension due to pulmonary heart disease for which he was under treatment by the medical authority and information of which was submitted to the respondents along with medical records. He has challenged the proceedings on the ground that during suspension no police official can be called to attend any sort of duty and remaining absent from duty during that period would not amount to a misconduct.
It has also been contended that the criminal case under 7 of ESMA was on identical grounds for remaining absent and on his acquittal, he has been punished arbitrarily. Applicant further contended that despite filing his appeal the same has not been disposed of by the respondents.
Dismissal order has been passed on account of remaining absent during suspension. According to him suspension was on account of criminal cases and he has been acquitted in both the cases, the suspension period ought to have been treated as spent on duty and in that event he should not have been punished for the alleged absence during suspension.
7. Respondents in their counter have contested the applicant on the ground that the police official is required to attend roll call as per Rule 26(i) of the Delhi Police Act and he would be subjected to major penalty even if he is under suspension. According to the respondents applicant has not tendered any appeal and has failed to show any proof for the same. Respondents contented that the applicant was given reasonable opportunity during the course of enquiry but as the applicant wilfully and unauthorisedly absented for such a long period, punishment awarded is legal as per rules. Respondents further contended that if the allegations in both the proceedings i.e. criminal and departmental are identical the same would not be kept in abeyance and that would depend on the fact of each case.
8. Applicant in his rejoinder controverted the pleas taken by the respondents and reiterated the pleas taken in the OA. Applicant contended that he could not be insisted upon to attend roll call during the period of suspension. According to him, Rule 26(i) ibid is not applicable to him as the same was amended only in the year 1998 whereas in the instant case he has been charged for remaining absent for a period from 11.8.84 to 10.7.86 and at that time there was no provision in any rule under Delhi Police Act prescribing that a police official should attend roll call during the period of suspension.
10. Respondents have vehemently contested the application on the ground that during suspension as per Rule 26(3)(i) ibid a Police Officer has to perform roll call and would also be subjected to the same responsibilities discipline and penalties to the same authorities, as if he had not been suspended. To support this plea, judgment of the Full Bench of this Tribunal in OA No. 2497/97 (Shri Sawant Singh) with OA No. 1238/97 (Rajinder Singh) decided on 18.9.2000 has been relied upon to contend that the Full Bench has clearly laid down that a Police Officer under the provisions of Delhi Police Act and Rules was required to attend roll call and failure to do so with proper authorisation would not amount to unauthorised absence.
11. We have carefully gone through the Full Bench judgment and we find that the same would not be applicable to the police official to whom direction has been issued to attend roll call during the period of suspension before 22.7.88 i.e. the date when the provisions of Rule 26(3}(i) was amended. In the judgment of the Full Bench relying upon the ratio laid down by the Hon'ble Supreme Court in State of Punjab v.Dharam Singh 1987(2) SCC 550 regarding Rule 16.21 Punjab Police Rules it was observed that during suspension Police Officer has to attend roll call and his absence would amount to misconduct. The Tribunal taking this corollary into account has observed as follows: 21. It was clear to us that Section in Delhi Police Act read with Rule 26(3)(1) Delhi Police (P and A) Rules extracted above, was para material with Rule 16.21 Punjab Police Rules, and had merely stated more explicitly what was contained in Rule 16.21. We were, therefore, of the view that the Tribunal in its order dated 14.7.2000 was correct in holding that the Hon'ble Supreme Court's ruling in Dharam Singh's case (supra) was an authoritative decision in the point of law that arose in this case. Any executive instruction had to give way to the provisions of the Delhi Police Act and Rules made, thereunder. It was true that Section 24 Delhi Police Act laid down that every Police Officer not on leave or under suspension would for all (emphasis supplied) purposes under the Act be deemed to be always (emphasis supplied) on duty, but this was the reiteration of a liability which flowed from the very nature of police duties and could not be construed to mean that because a Police Officer was under suspension, he was not even required to make himself available to the authorities and/or to attend roll call during the period of suspension. Indeed during the period of suspension, the master and servant relationship clearly continued to subsist and was not severed, and roll call was one of the means by which a Police Officer under suspension continued to remain subject to the discipline of the authorities who exercised administrative control over him, which was provided for in Section 14 Delhi Police Act read with Rule 26(3)(1) Delhi Police (Punishment and Appeal) Rules. We found support in this view in the Punjab and Haryana High Court's judgment in State of Punjab and Another v.. Daljit Singh also made in the context of Rule 16.21 Punjab Police Rules, reproduced in 1998(4) S.L.R. 413.
22. The foregoing analysis led us to conclude that Rule 26(3)(1) Delhi Police (Punishment and Appeal) Rules was not ultra vires Section 24 Delhi Police Act and indeed only complemented Section 14 of that Act. Upon applying the ratio of Hon'ble Supreme Court's ruling in Dharam Singh's case (supra), which though made in the context of Rule 16.21 Punjab Police Rules, was clearly applicable to Section 14 Delhi Police Act read with Rule 26(3)(1) Delhi Police (Punishment and Appeal) Rules and was an authoritative decision on the matter in issue, it was abundantly clear to us that a Police " Officer under the provisions of the Delhi Police Act and Rules thereunder was required to attend roll call and be available to the authorities during the period of suspension, and failure to do so without proper authorisation from the competent authority would amount to unauthorised absence.
23. It was for the foregoing reasons that we answered the aforesaid reference in the affirmative.
12. From a perusal of the pleadings, we feel that Rule 26(3)(i) which has been read in the context of Rule 16.11 Punjab Police Rules, there was no provision under the Delhi Police Act, 1978 which mandated presence of a police official on roll call and also subject him to discipline, penalties during suspension before 22.7.88. It is only after amendment of Rule 26(3)(i) ibid that the respondents have acquired jurisdiction and power to call for the presence of a police official on roll call and to punish him on that count. Section 14 of the Delhi Police Act cannot be read in isolation to Rule 26(3)(i) ibid.
The aforesaid provision does not prescribe discipline and control over the suspended police official regarding discipline and penalty. This provision is also silent on the issue of attendance of Police Officer on roll call during the period of suspension.
13. Admittedly the allegation against the applicant for remaining absent during suspension with effect from 31.10.84 to 16.7.86 and his case would not be covered by the provisions of Rule 26(3)(i) ibid as the same has been brought as amendment only on 22.7.88. A statutory rule in the absence of any provision regarding retrospectivity would not be applicable in the case of the applicant retrospectively. As the aforesaid Full Bench judgment (supra) would not apply in the case of the applicant and as there is no provision before 22.7.88 in the Delhi Police Act or Rules which stipulated attendance of a police official on roll call duty during suspension, the direction issued by the respondents to the applicant to attend roll call was without any jurisdiction. In the absence of any provision to that effect, the applicant would not be considered unauthorisedly absent on account of his alleged absence during the course of suspension. Apart from this, according to Government of India instructions it is illegal to direct a Government servant to perform any sort of duty during suspension. The only justification of the respondents that Rule 26(3)(i) would be applicable in the case of the applicant is not legally sustainable. As such we are of the considered opinion that the direction issued to the applicant to attend roll call during suspension was without any legal authority and as a consequence the applicant was not legally bound to perform any sort of duty during suspension. In view of this, applicant cannot be charged for remaining unauthorisedly absent during the period of suspension. The punishment imposed upon him on that count is also not legally sustainable and is liable to be set aside.
14. There is yet another aspect of this case. As the applicant was placed under suspension on account of registration of criminal cases under ESMA and suspension was continued on account of his alleged involvement in FIR No. 473/85. On a perusal of the judgment dated 28.1.97 it is apparent that in the criminal case the applicant also charged for remaining unauthorisedly absent during the period of suspension and the same resulted in an acquittal as the provisions of the Act were not extended to the Delhi police personnel. In another case the applicant was acquitted from the criminal charge on merits. In this conspectus, the Counsel for the applicant contends that after his acquittal from the criminal cases, the applicant would not be liable for any penalty in view of Rule 12 of the Delhi Police (Punishment and Appeal) Rules. For this purpose we have perused the order of the DA and we find that the DA while imposing extreme penalty of dismissal has also considered his alleged involvement in some criminal activities (Annexure 5). As the applicant has already been acquitted from the criminal charges, he should not have been punished for his alleged involvement in the criminal cases. In this view of ours, we are fortified by the ratio laid down by Hon'ble Supreme Court in Captain M.Paul Anthony v. Bharat Coalmines, 1999 (2) JT 456=1999(3) SLJ 152 (SC).
15. As far as the question of delay is concerned, we feel that the applicant was also punished for his alleged involvement in the criminal cases. The applicant was acquitted in the criminal cases on 17.8.87 as well 16.11.98 respectively. As such the applicant made representation to the authorities but the same has been rejected on merit by observing that his dismissal is on the ground, of absence but has nothing to do with the criminal cases. It is not true as the order of the DA has clearly incorporated the alleged criminal activities of the applicant and he was imposed extreme penalty of dismissal upon him. As such the applicant has come within the period of limitation on rejection of his request by the Commissioner of Police with reference to his acquittal in the criminal cases on 27.5.98. The application was filed within one year from the said date and therefore it is within the limitation prescribed under Sections 20 and 21 of the AT Act, 1985.
16. In the result, for the foregoing discussions, we allow this OA and quash and set aside the impugned orders cited above. We direct the respondents to reinstate the applicant in service with effect from 18.6.87. As we feel that the applicant was also responsible for not deligently perusing his departmental remedies, he would not be entitled for any backwages on the principle of "No work No pay", but shall be entitled for other consequential benefits. The aforesaid exercise shall be completed within a period of 3 months from the date of receipt of a copy of this order. There shall be no order as to costs.