1. Doctrine of precedent as well as stare decisis have been settled by the various pronouncements of the Apex Court. It is trite that an order passed by a coordinate Bench is binding on another Bench and in case of any divergent opinion for a view expressed in variance of the earlier Bench, the methodology is to refer the same to a Larger Bench. However, in SI Rooplal and Ors. v. Lt. Governor through Chief Secretary, Delhi and Ors. , insofar as doctrine of precedent is This Court has laid down time and again that precedent law must be followed by all concerned; deviation from the same should be only on a procedure known to law.
2. Having regard to the above, any decision, which is rendered in ignorance of a statutory provision is to be observed as a decision in per incuriam and has no precedent value. The Apex Court in a Constitution Bench in A.R. Antulay v. R.S. Nayak and Anr.
observed as under: 42. It appears that when this Court gave the aforesaid directions on 16th February, 1984, for the disposal of the case against the appellant by the High Court, the directions were given oblivious of the relevant provisions of law and the decision in Anwar Ali Sarkar case. See Halsbury's Laws of England, 4th End, Vol. 26, page 297, para 578 and page 300, the relevant notes 8, 11 and 15; Dias on Jurisprudence, 5th Edn., pages 128 and 130; Young v. Bristol Aeroplane Co. Ltd. [1944] 2 AER 293 at 300. Also see the observations of Lord Goddard in Moore v. Hewitt [1947] 2 A.E.R. 270 at 272-A and Penny v. Nicholas [1950] 2 A.E.R. 89, 92A. "per incuriam" are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the Court concerned, so that in such cases some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong. See Morelle v. Wakeling [1955] 1 All E.R. 708, 718F. Also see State of Orissa v. The Titaghur Paper Mills Co. Ltd. opinion that in view of the clear provisions of Section 7(2) of the Criminal Law Arnendment Act, 1952 and Articles 14 and 21 of the Constitution, these directions were legally wrongIn State of Bihar v. Kalika Kuer @ Kalika Singh and Ors.
, the following have been observed: 9. In Fuerst Day Lawson Ltd. v. Shivaraj V. Patil , this Court observed: A prior decision of the Supreme Court on identical facts and law binds the Court on the same points of law in a latter case. In exceptional instances, where obvious inadvertence or oversight a judgment fails to notice a plain statutory provision or obligatory authority running counter to the reasoning and result reached, the principle of per incuriam may apply. Unless it is a glaring case of obtrusive omission, it is not desirable to depend on the principle of judgment "per incuriam". It has to be shown that some part of the decision was based on a reasoning which was demonstrably wrong, for applying the principle of per incuriam.In Nirmal Jeet Kaur v. State of M.P. and Anr. on per incuriam, following are the observations: 21. "Incuria" literally means "carelessness". In practice per incuriam is taken to mean per ignoratium. English Courts have developed this principle in relaxation of the rule of stare decisis.
The "quotable in law", as held in Young v. Bristol Aeroplane Co.
Ltd. (1944) 2 All E.R. 293, is avoided and ignored if it is rendered, "in ignoratium of a statute or other binding authority".
Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution of India, 1950 (in short the 'Constitution') which embodies the doctrine of precedents as a matter of law. The above position was highlighted in State of U.P. and Anr. v. Synthetics and Chemicals Ltd. and Anr.
. To perpetuate an error is no heroism. To rectify it is the compulsion of the judicial conscience.
22. For making an application under Section 439 the fundamental requirement is that the accused should be in custody. As observed in Salauddin's case (supra) the protection in terms of Section 438 is for a limited duration during which the regular Court has to be moved for bail. Obviously, such bail is bail in terms of Section 439 of the Code, mandating the applicant to be in custody. Otherwise, the distinction between orders under Sections 438 and 439 shall be rendered meaningless and redundant.
23. If the protective umbrella of Section 438 is extended beyond what was laid down in Salauddin's case (supra) the result would be clear bypassing of what is mandated in Section 439 regarding custody. In other words, till the applicant avails remedies upto higher Courts, the requirements of Section 439 become dead letter.
No part of a statute can be rendered redundant in that manner.
5. If one has regard to the above, what is discerned from cumulative effect of the ratio deci dendi, any decision, which is delivered in ignorance or without taking into consideration the statutory rules occupying the field, would not be a binding precedent and has no precedent value in law.
6. In the light of the above, by virtue of this application, the Head Constable and Constable in Delhi Police have assailed an order passed by the respondents on 2.2.2006 whereby a searching departmental inquiry into the misconduct has been ordered by the disciplinary authority under Rule 29(1) of Delhi Police (Punishment and Appeal) Rules, 1980 (for short the Rules).
7. A brief factual matrix is relevant to be highlighted. Applicants, namely, S/Shri Lokender Pal and Sanjay Singh, while posted in 3rd Bn.
of DAP of DP on 15.7.2004 detailed for duty to escort Under Trial Prisoner (UTP) Jitender @ Kally for his medical check up to AIIMS, New Delhi in a jail ambulance, who was involved in several cases of murder and attempt to murder and was facing an externment proceeding under Section 47 of Delhi Police Act. After check up of UTP Virender Chopra, two Constables waited for HC Lokender Pal and after search, found both HC Lokender Pal and Constable Sanjay Singh lying unconscious. DD No.54-B dated 15.7.2004 was lodged and as the UTP escaped from the custody doping the applicants, case FIR No. 379 dated 15.7.2004 under Sections 223/224/328/120-B/216 IPC was registered against the applicants and they were placed under suspension on 15.7.2004.
8. The common order passed on 16.7.2004 dismissed the applicants without holding of dispensation of departmental inquiry under Articles 311 (2) (b) of the Constitution of India.
9. Meanwhile the criminal trial on investigation was charge-sheeted before the court of competent criminal jurisdiction and a charge is to be framed.
10. Order of dismissal was challenged jointly by the applicants in OA-2951/2004 wherein vide order dated 15.7.2005, the following directions have been issued: Nothing said herein would restrain the respondents from passing any order including suspending the applicant, if deemed appropriate.
Consequential benefits, if any, would accrue to the applicant as per law.
11. CWP 22854-56 of 2005 filed before the High Court of Delhi, which was dismissed on 2.12.2005, led to an order passed on 27.1.2006 whereby on reinstatement from service, the applicants have been placed under deemed suspension from the date of reinstatement and the interregnum period would have to be decided in accordance with rules.
12. Vide the impugned order passed on 2.2.2006 under the provisions of Rule 29 of the Rules, searching departmental inquiry has been ordered against the applicants.
13. From perusing the records produced by the learned Counsel for respondents, it is found that the searching inquiry report when submitted to the Deputy C.P. with an endorsement dated 22.2.2006, the same has been forwarded to the Joint C.P. where, on his approval, an inquiry ordered on 30.3.2006 was assailed by the applicants in OA-988/2006.
14. Before disposal of the present OA, i.e., OA-429/2006, OA-988/2006 was argued and by an order dated 5.7.2006 where the claim of the applicants was directed against the order of the disciplinary authority and attempt to stay the inquiry proceedings proceeded simultaneously with the criminal trial on the same set of facts, the following observations had been made: 17. There is one exception, which is carved out in this judgment viz. if the evidence in both the proceedings is common, the Court has to see whether in those circumstances, the DE should be stayed or not.
18. In this backdrop, if the facts of the present case are seen, we find that not only the scope of criminal case and the departmental enquiry are in different sphere but also the evidence would be different inasmuch as in the departmental enquiry respondents are not going to look into the criminal conspiracy angle. In the DE, allegation is that it is due to the carelessness and negligence of the applicants, by consuming the drinks offered by the under trial, that resulted in the escape of the dreaded criminal, against whom serious criminal cases were pending, apart from the externment proceedings under Section 47 of the Delhi Police Act. Therefore, in the departmental enquiry, it is the misconduct of the applicants, which is going to be looked into. We do not want to comment any thing further at this stage because in the enquiry, it would be open to the delinquent or applicants to give the defence whatsoever is available to them as to how they became unconscious and how accused Jitender escaped from their judicial custody. Jitender escaped from their custody is a matter of fact. Therefore, the object of holding departmental enquiry is, to find out how applicants became unconscious which resulted in the escape of a dreaded under trial from their judicial custody. Therefore, it would be in applicants own interest to participate in the enquiry and defend themselves.
Since scope of both the proceedings is distinct, it is wrong to suggest that their defence in criminal case would be disclosed if the inquiry is allowed to be concluded.
19. There is yet another aspect which has to be kept in mind viz., that even though FIR against applicants was lodged as back as on 15.7.2004 but till 2006 only charge has been framed against the applicants. Nobody knows how much more time it would take for the criminal case to conclude. Hon'ble Supreme Court has also held in the same judgment that if the criminal case is being unduly delayed, departmental proceedings even if they were stayed, can be resumed and proceeded with, so as to conclude them at the early date, so that if the employee is not found guilty, his honour may be vindicated and in case he is found guilty, the administration may get rid of him at the earliest. (Para 12 (v)). Therefore, keeping in view the delay in criminal case also the D.E has rightly been initiated by respondents. Apart from it, after having seen the charge and the summary of allegations, we can safely conclude that there is no complicated question of law and fact involved in this case. Therefore, according to us, this case does not fall within any of the exceptions carved out in the judgment of Hindustan Petroleum Corporation Ltd. v. Sarvesh Berry 20. There is yet another ground on which this O.A. needs to be dismissed. It is seen, that when applicants had challenged the order dated 16.7.2004 passed under Article 311 (2) (b) of the Constitution (page 27), applicants had specifically contended that it was not a fit case to invoke Article 311 (2) (b) of the Constitution because it was reasonably practicable to hold the inquiry. (Para 4 of the judgment dated 15.7.2005) (page 31 at 34). After discussing all the judgments, Tribunal quashed the order dated 16.7.2004 passed under Article 311 (2) (b). However, liberty was given to the Department specifically, to initiate departmental action, if they so feel. It was also observed that respondents would not be restrained from passing any order including suspending the applicants, if deemed appropriate. Therefore, not only applicants had themselves suggested that departmental enquiry can be held in this case but even Tribunal vide its judgment dated 15.7.2005 had given liberty to the respondents to initiate departmental action against the applicants, which judgment has not been challenged by the applicants, therefore, it has attained finality.
21. In view of the above, it is not open to the applicants now to challenge the initiation of departmental enquiry, as they are estopped from raising that objection. They cannot be allowed to blow hot and cold in the same breath. Moreover, they are also bound by the direction given by the Tribunal in its order dated 15.7.2005.
22. In view of the above discussion, we find no merit in this O.A. The same is accordingly dismissed. No order as to costs.
15. Shri Shyam Babu, learned Counsel for the applicant contended that the decision in OA-988/2006 is per incuriam, as the import and tenor of Rule 29 of the Rules has not at all been considered, which is statutory and to be followed in the particular facts and circumstances of the case.
16. Learned Counsel has also assailed the order of searching inquiry on the ground that having found negligence, which amounted to criminal offence for which FIR has been registered. On investigation, a charge-sheet having been filed before the competent court of criminal jurisdiction, holding of an inquiry into the facts on the negligence, which constitutes criminal offence, is barred under Rule 29 of the Rules.
17. Learned Counsel, on deemed suspension, i.e., the period from the earlier dismissal till reinstatement, contended that earlier the applicants when placed under suspension no inquiry was held and in the absence of any rule under Delhi Police to provide for deemed suspension, as dismissal was on dispensation of inquiry under Article 311 (2) (b) of the Constitution, now the inquiry held would not legally justify the deemed suspension of the applicants and in such an event, the period of suspension would have to be treated as spent on duty. A resort has made to substantiate on the basis of the Apex Court in H.L.
Mehra v. Union of India and Ors. and the decision of the Division Bench of this Tribunal in Vimal Kumar v. Union of India and Ors.
18. Learned Counsel for applicants would contend that once a prosecution is launched against the applicants, no final decision can be taken in the inquiry and the inquiry on the same facts or on issue of negligence in escape of prisoner allegedly, is not warranted.Union of India v. Madhusudan Prasad would hold the field and the suspension on deemed basis cannot be justified.
20. On the other hand, Shri Ajesh Luthra, learned Counsel appearing for the respondents vociferously opposed the contentions and stated that now challenge to the searching departmental inquiry has lost its significance when the consequence preceding the searching inquiry, i.e., the order initiating the departmental inquiry once has been upheld by the this Tribunal, the OA has rendered infructuous.
21. Learned Counsel for respondents would contend that the criminal case or departmental inquiry initiated against the applicants is amenable to domestic jurisprudence. On reinstatement of the applicants, once they have been placed under suspension earlier before the inquiry was dispensed with, master and servant relationship has been restored in earlier decision where liberty has been accorded in OA-2951/2004 to place them under suspension and to proceed in a departmental proceeding and the fact that the suspension having not been challenged in an earlier OA, there is no illegality committed by the respondents.
22. Learned Counsel would also contend that in the aforesaid OA, what has been set aside is only the punishment part and as suspension is not the punishment and by placing reliance on a decision of this Tribunal in Head Constable Satender Singh v. Govt. of NCT of Delhi and Anr.
(OA-441/2004) decided on 4.4.2005, it is stated that the decision in H.L. Mehra's case (supra) has been distinguished and the decision in Managing Director, ECIL v. B. Karunakar and Ors. 1993 SCC (LandS) 1814, the Constitution Bench in para 31 clearly ruled as to initiation of inquiry and on remand back placing the government servant under deemed suspension having been upheld, the absolute reinstatement would be final when the departmental inquiry is finalized and as per FR 54-A (1) on exoneration, the period of suspension has to be treated as spent on duty.
23. In rejoinder, the contentions raised in the counter reply have been controverted with reiteration of the pleadings in the OA.24. We have carefully considered the rival contentions of the parties and perused the departmental records produced by respondents' learned Counsel.
25. Few facts, which are not disputed in chronological order transpire that applicants, who were placed under suspension, were dismissed under Article 311 (2) (b) of the Constitution. With the punishment being set aside, the said suspension is impliedly set aside. The directions of the Tribunal in OA-2951/2004 where setting aside the order of dismissal initiation of departmental proceedings and placing the applicants under suspension is also qualified with grant of consequential benefits as per law. On a plain reading of the aforesaid, as judgments cannot be interpreted, like statute, what is discerned is that whenever a direction on liberty is issued to the respondents, the same has to be implied as to be a follow-up action by the respondents in accordance with the rules and instructions and law on the subject and not de hors the statutory rules or law.
26. In such view of the matter, it is also not in dispute that on a spot inquiry by the Commissioner of Police, the negligence amounting to criminal offence having been disclosed and imputed against the applicants, FIR No. 379 dated 15.7.2004 under Sections 223/224/328/120-B/216 IPC was registered. On investigation, the same is sub judice before the trial court.
27. Insofar as the order passed by the respondents to place the applicants under deemed suspension on 22.2.2006 is concerned, Rules 27 and 28 of the Rules do not envisage a deemed suspension but on a resort to the CCS (CCA) Rules, 1965, which is in pari materia containing the powers of review of suspension, a deemed suspension would have to be resorted when on liberty further inquiry has been ordered.
28. A further inquiry would connote in its literal sense that any inquiry on its initiation and declaration to the effect by the judicial forum on resumption, would be a further inquiry but if in a peculiar case when initially on dismissal under Article 311 (2) (b) of the Constitution, which is on dispensation of the departmental inquiry, it is established that no inquiry has been held in the past, in such an event, the observations of the decision in Vimal Kumars case (supra) where deemed suspension resorted to on reinstatement against a person, who has been on reinstated after dismissal under Article 311 (2) (b) of the Constitution, are reproduced hereunder: 12. We have carefully considered the rival contentions of the parties and perused the material on record. Rule 10(4) of the CCS (CCA) Rules, 1965 is reproduced as under: Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government servant is set aside or declared or rendered void in consequence of or by a decision of a Court of Law and the Disciplinary Authority, on a consideration of the circumstances of the case, decides to hold a further inquiry against him on the allegations on which the penalty of dismissal, removal or compulsory retirement was originally imposed, the Government servant shall be deemed to have been placed under suspension by the Appoint Authority from the date of the original order of dismissal, removal or compulsory retirement and shall continue to remain under suspension until further orders: 13. The Apex Court in Mahender Singh's case (supra) while interpreting Rule 10 (4) ibid observed as under: There are three requirements for the application of Rule 10(4); (i) the Government servant is dismissed, removed or compulsorily retired as a measure of penalty; (ii) the penalty of dismissal, removal or compulsorily retirement is set aside of declared or rendered void by a decision of a Court of law; (iii) the Disciplinary Authority decided to hold a further inquiry against the Government servant on the allegations on which the original order of penalty was imposed.
If these three requirements are satisfied then the Government shall be deemed to have been placed under suspension by the appointing authority from the date of original order of penalty of dismissal, removal or compulsory retirement and he shall continue to remain under suspension until further orders: 14. Further while dealing with the issue of further enquiry the following observations have been made: 7. The order of the Tribunal and the management as to the retrospective suspension of the appellant cannot be sustained under Rule 10(4) of the Rules. It may be relevant to remember that the original order of termination was not passed against the appellant as a measure of punishment. It was a ' simpliciter termination' of the appellants service under Rule 5(1) fo the CCS (Temporary Service) Rules, 1965, the Tribunal has set aside the order on the ground that it amounts to punishment and the order of punishment could not have been made without holding an inquiry against the appellant. But that is not the same thing to state that the management made an order termination the services of the appellant by way of penalty. The management treated the said order as a simpliciter discharge. Rule 10(4) therefore has no application to the case of the appellant.
8. Secondly, if would be misnomer to call it a further inquiry as contemplated under Rule 10(4). There was no question of the management deciding to hold a further inquiry since there was no earlier inquiry against the appellant.
9. The power to place delinquent officer under suspension from the date of original order of dismissal, removal or compulsory retirement from service would be available provided if the original order of dismissal, removal or compulsory retirement from service was made by way of penalty and that order has been set aside by a Court of law. Since there was no inquiry leading to the removal of the appellant in the first instance, the decision to hold fresh inquiry does not attract Rule 10(4). The retrospective suspension of the appellant is therefore unjustified and without authority of law.
15. If one has regard to the above it is no more res integra that since quo non for application of Rule 10(4) is fulfillment of all the three conditions which inter alia includes a dismissal as a measure of penalty, it is being declared void by the Court of law and decision of the disciplinary authority to hold a further enquiry. It is only satisfaction of these three requirements when Rule 10(4) ibid can be invoked.
16. In the instant case, applicant who was dismissed under Article 311(2) (b) the decision has been rendered nullity not only for violation of principles of natural justice but also arbitrarily involving Article 311 (2)(b) when the enquiry was permissible. In this backdrop the dismissal was set aside. However the department has been left with the liberty to proceed applicant in accordance with rules.
17. Having regard to the aforesaid decision of the Apex Court admittedly applicant was awarded penalty under Rule 11 of the CCS (CCA) Rules which has been set aside by the Court. The only question for our determination is whether in a given case when the earlier order of dismissal is not followed after an enquiry held under CCS (CCA) Rules can it be said that further enquiry can be held to invoke deemed suspension under Rule 10(4) ibid? 18. As a sine quo non of Rule 10(a) further enquiry is to be ordered by the disciplinary authority as while invoking Article 311(2)(b) against the applicant regular enquiry procedure has been dispensed with. It has to be concluded that no enquiry had been held. In that event the enquiry now ordered cannot be termed as a further enquiry and applicant cannot be treated as deemed suspended from the date of dismissal but the suspension would operate prospectively i.e. from the date of reinstatement.
19. Accordingly the intervening period from the date of dismissal to the date of reinstatement would have to be operative and decided as per FR 54 in the light of the decision of the Apex Court in Madhusudan Prasads case (supra) where the following observations have been made: 5. It is true that when a reinstatement is ordered in appeal or review the authorities can pass specific order regarding the pay and allowances to be paid to the Government servant for the period of his absence from duty preceding the dismissal, removal or compulsory retirement, as the case may be. This is an enabling provision and the authorities can consider the relevant facts as to whether the employee should be denied the salary for the period he was kept under suspension preceding the removal dismissal or compulsory has placed reliance on the decision of the Constitution Bench of this Court in Managing Director ECIL v. B. Karunakar 1993 SCC (LandS) 1184 where this Court held that the question whether and other benefits from the date of his dismissal to the date of reinstatement, if ultimately ordered, should invariably be left to be decided by the authorities concerned accordingly to law, after the culmination of the proceeding and depending on the final outcome. If the employee succeeds in the fresh enquiry and is directed to be re-instated, the authority should be at liberty to decide according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any, and the extent of the benefits, he will be entitled. The reinstatement made as a result of the setting aside of the enquiry for failure to furnish the report should be treated as a reinstatement for the purpose of holding the fresh enquiry from the stage of furnishing the report and no more, where such fresh inquiry is held. 6. The above case was concerning an employee, who was found guilty in an inquiry but the report was not furnished to the employee and the show cause notice was not served on him. In view of the facts and circumstances of the case, the Court directed that appropriate order should be passed regarding the back wages. In the instant case, the Appellate Authority directed restatement of the respondent and held that he was not entitled to get back wages for the period he was out of service. It may be noticed that the respondent was removed from service without any inquiry and he was not even given a show cause notice prior to his dismissal from service. There was fault on the part of the employer in not following the principles of natural justice. These relevant facts were considered and the learned Single Judge and also the Division Bench ordered the payment of back wages. We do not thing this a fit case where fundamental Rule 54 could have been invoked by the authorities. We find no merit in the appeal. The appeal is accordingly dismissed.
20. In the light of the above, decision to deem applicant under suspension from the date of dismissal cannot be sustained in law.
The case of applicant does not come within the ambit of Rule 10(4) ibid. Accordingly the order passed cannot be sustained in law.
21. Respondents plea that decision of Mahender Singhs case (supra) would not apply in the instant case cannot be countenanced. The ratio decidendi is non-fulfillment of required conditions under Rule 10(4). There would be an occasion for further enquiry if there had been an enquiry held earlier. The aforesaid refers to situation where the dismissal or removal has been as a consequence of disciplinary proceedings but like termination which has been set aside in Mahender Singhs case (supra) as a punitive order deeming a penalty imposed upon applicant without following due process of law on the same analogy an order passed under Article 311(2) (b) is not preceded by a departmental enquiry the procedure is dispensed with.
The ratio in Mahender Singh (supra) mutatis mutandis applied to an order passed under Article 311(2)(b) of the Constitution as well.
29. If one has regard to the above, we are of the considered view that if no inquiry is held earlier, the suspension resorted to cannot be deemed from the date of reinstatement and the entire period has to be treated till the date of reinstatement for the purposes of consequential benefits, as ordered by the Tribunal in accordance with law. As per FR 54, when meritorious consideration has come, the same has to be treated for the consequential benefits of pay and allowances.
30. The decision quoted by the learned Counsel for respondents in B.Karunakar's case (supra) and his reliance on Satender Singh's case (supra) is misconceived. In both the cases, the background facts are that when the inquiry, earlier resorted to, has been set aside and further inquiry held, the decision to deem the person under suspension has been upheld. But when no inquiry has been held, in such an event, the law laid down shall have no application. In discerning ratio deci dendi of a case, what is relevant is not what can be inferred from the order but what is actually decided by the order. The peculiar facts and circumstances of the case and their adjudication with regard to the position of law is the ratio deci dendi. If on the facts itself a case is not comparable, it has no precedent value as well. In such an event, the only case, which leads and gives assistance, is the constitutional mandate under Article 141 of the Constitution. In the case of Madhusudan Prasad (supra), which has not only taken into consideration the decision in B. Karunakar's case (supra) but also has been well relied upon with justified action in Vimal Kumar's case (supra), on all fours, covers the issue in the present case. In such view of the matter, we have no hesitation to hold that the deemed suspension resorted to in the case of the applicants cannot be sustained in law.
The period from the date of dismissal till their reinstatement has to be treated as spent on duty as per consequential benefits flowing from the directions of the Tribunal in OA-2951/2004. However, we do not question the jurisdiction of the respondents to resort the suspension, if so advised, prospectively in accordance with law.
31. Insofar as the second issue of challenge to the searching departmental inquiry is concerned, Rule 29 of the Rules is reproduced as under: 29. Suspension in cases of escape of prisoners from police custody.
- (1) If a prisoner escapes or is rescued from police custody, the police officer immediately responsible, shall forthwith be suspended from duty. A searching departmental enquiry shall at once be held by or under the orders of the Deputy Commissioner of Police. The object of this enquiry shall be at elucidation of all circumstances connected with the escape or rescue and the determination of issue whether the escape or rescue could have been prevented by the exercise of such vigilance and courage on the part of the Police Officer immediately responsible as might reasonably have been expected, and whether it was rendered possible or facilitated by any neglect or omission of duty on the part of any superior police officer.
(2) On the conclusion of enquiry, if the Deputy Commissioner of Police finds that no misconduct is attached to the Police officers or officer suspended, he shall reinstate them.
(3) If the enquiry establishes negligence or connivance in an escape, thereby creating a presumption that an offence under Section 221, 222 or 223 IPC has been committed, the police officer concerned shall be prosecuted in a criminal court, unless the Additional Commissioner of Police on a reference by the Deputy Commissioner of Police decides, for reasons to be recorded in writing that the case shall be dealt with departmentally. If the enquiry establishes a breach of discipline or misconduct not amounting to an offence under any of the sections of the IPC mentioned above, the case shall ordinarily be dealt with departmentally. The criminal prosecution under this rule of an upper subordinate shall not be undertaken without the sanction of the Additional Commissioner of Police.
Dismissal or removal from service shall normally follow a judicial conviction, for finding of guilt in a departmental enquiry for negligence resulting in the escape of a prisoner.
Interpretation of said rules, inter alia, involves within the process various principles. The commonest in all this is purposive, literal and harmonious construction of the rule with the underlined object lied in it.
32. If one has regard to the above, when in the wake of a general principle to hold disciplinary proceedings, if a particular provision is inserted in the rules for a peculiar situation, then the special provision would override any other provision inconsistent with the rules and in such a peculiar situation, which is covered within its ambit, would have to be applicable.
33. As regards suspension in cases where UTP has escaped from the custody of the police officer without being anything derived on investigation, the police officer from whose custody the prisoner has escaped, would have to be forthwith placed under suspension. At that time, just to elucidate the circumstances connected with the incident, to fix the responsibility and not where the escape is a result of negligence on part of the police officer, searching departmental inquiry is conducted. If it is found that no negligence is established and no misconduct is attached to the police officer, on reinstatement no further action is to be taken. But on establishment of negligence in searching inquiry on a presumption of an offence under Section 223 of the IPC, the rule for prosecution of the officer is that unless the initiation establishes a breach of discipline or misconduct, it does not amount to an offence under IPC, a departmental proceeding is to be held on approval by the Additional C.P. on a reference by a Deputy C.P.on recording reasons. However, while issuing order of punishment, the aforesaid rule provides that after finding of guilt in departmental inquiry, judicial verdict has to be awaited and thereafter on conviction, dismissal or removal from service has to be awarded.
34. The object of enacting Rule 29 of the Rules is to know through searching departmental inquiry whether the negligence in escape of a prisoner amounts to criminal offence, then the prosecution is launched with an exception when such a negligence amounts to a misconduct or a breach of discipline, a departmental inquiry has to be ordered. It is only after the searching departmental inquiry that a decision is to be taken whether to prosecute the police officer for his alleged misconduct / offence of escape of prisoner or to hold a departmental inquiry for a breach of discipline.
35. However, in a case where a prosecution is launched immediately on a spot inquiry by ACP by registration of FIR, the need for holding a searching inquiry is obviated. If a decision is taken to register a case and launch the prosecution, which does not require a prior approval of the Additional C.P., it is only when a negligence reported does not show any criminal offence as an exception on a breach of discipline or misconduct, a departmental inquiry has to be ordered. It is very illogical that if on a registration of a case and thereafter a searching inquiry is held when negligence amounting to criminal offence has already been established, would amount to approbate and reprobate simultaneously. The tenor of this Act and its import, whereby dismissal and removal would follow a judicial conviction, the only logical inference, which can be drawn is that even if an inquiry is held for a breach of discipline or misconduct, yet the punishment of dismissal or removal could not be effected unless the outcome of the trial court is known and if one is judicially convicted of the offence.
36. The rule of interpretation clearly holds that interpretation should not be done in the manner to render nugatory the expression of the legislature.Bharathidasan University v. All-India Council for Technical Education (2001) 8 SCC 676 held as follows: When the legislative intent is found specific mention and expression in the provisions of the Act itself, the same cannot be whittled down or curtailed and rendered nugatory by giving undue importance to the so-called object underlying the Act or the purpose of creation of a body to supervise the implementation of the provisions of the Act, particularly when the AICTE Act does not contain any evidence of an intention to belittle and destroy the authority or autonomy of other statutory bodies, having their own assigned roles to perform. Merely activated by some assumed objects or desirabilities, the Courts cannot adorn the mantle of legislature.
It is hard to ignore the legislative intent to give definite meaning to words employed in the Act and adopt an interpretation which would tend to do violence to the express language as well as the plain meaning and patent aim and object underlying the various other provisions of the Act. Even in endeavouring to maintain the object and spirit of the law to achieve the goal fixed by the legislature, the Courts must go by the guidance of the words used and not on certain pre-conceived notions of ideological structure and scheme underlying the lawIn Gurudevdatta VKSSS Maryadid v. State of Maharashtra , it is held that when the statute is clear, plain meaning should be given effect to, observed as under: it is a cardinal principle of interpretation of statute that the words of a statute must be understood in their natural, ordinary or popular sense and construed according to their grammatical meaning, unless such construction leads to some absurdity or unless there is something in the context or in the object of the statute to suggest to the contrary. The golden rule is that the words of a statute must prima facie be given their ordinary meaning. It is yet another rule of construction that when the words of the statute are clear, plain and unambiguous, then the Courts are bound to give effect to that meaning, irrespective of the consequences. It is said that the words themselves best declare the intention of the law giver. The Courts have adhered to the principle that efforts should be made to give meaning to each and every word used by the legislature and it is not a sound principle of construction to brush aside words in a statute as being inapposite surpluses, if they can have a proper application in circumstances conceivable within the contemplation of the statute 39. If one has regard to the above, what is precluded is to add to the rules and the legislative intent is to be given respect to. The courts are precluded from making up deficiency in the rule or to add or read into the provisions, which on a literal reading, leads to an unintelligible result. Accordingly, an exception to the rule to hold an inquiry, when the negligence in escape, does not amount to criminal offence.
40. In the light of the above, the applicants have been prosecuted for an offence under Section 223 of IPC, which provides as under: 223. Escape from confinement or custody negligently suffered by public servant - Whoever, being a public servant legally bound as such public servant to keep in confinement any person charged with or convicted of any offence 120[or lawfully committed to custody], negligently suffers such person to escape from confinement, shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both 41. If one has regard to the above, the essential of the offence is that the offender must be a public servant to keep in confinement any person charged with or convicted. The charge of negligence makes him to suffer to escape. In the light of above, the charge-sheet filed against the applicants under Section 173 of Cr. PC clearly describes negligence of the applicants in escape of the prisoner from their custody on the ground that they have been doped by making them drink the sedative laced aerated water. Though the liberty has been accorded by the Tribunal on reinstatement of the applicants for initiation of a departmental inquiry, but when the rules are to operate in holding a departmental inquiry and more particularly in escape of a prisoner, the only provision for holding an inquiry is Rule 29 of the Rules. The inquiry has to be ordered as per this rule only. No further provision of Delhi Police can be adopted to operate in the ambit of holding proceedings against the applicants.
42. What has been done by the respondents by way of ordering searching departmental inquiry, after registration of a case, to find out whether the negligence of the applicants in alleged escape of the prisoner amounts to misconduct or a breach of discipline or a criminal offence.
Once the judicial forum has taken cognizance of the offence of negligence, no other inference could be drawn. Otherwise this would amount to an infraction of Rule 29 (3) of the Rules where if finding negligence as an offence in escape of prisoner registration of a case would not entail a simultaneous proceeding for a misconduct holding it as a breach of discipline. Once the only act of the applicants is their negligence, which resulted in escape of a prisoner, has been constituted to be an offence, the same cannot be simultaneously retreated as a departmental misconduct or breach of discipline when ultimately in summary of allegations as well, the applicants alleged to have instrumental in discharge in escape of the prisoner on their negligence.
43. On perusing the departmental records produced by the learned Counsel for respondents, which is an aftermath of order of searching departmental inquiry, it is clear that apart from recording evidence of all the witnesses, a finding arrived at by the ACP shows that they had failed to perform the duties with sincerity and showed negligence. It is also concluded that though no conspiracy has been found yet their negligence is instrumental in escape of the prisoner. The aforesaid finding when submitted to the Deputy C.P. solicits a departmental action for which the Joint C.P. has been approached to seek his approval. From the records submitted by the respondents, we find that no reasons have been recorded in writing by the Joint C.P. to order a departmental inquiry, which is not a valid compliance of Rule 29 (3) of the Rules.
44. A vehement reliance has been placed by the learned Counsel for respondents on a decision of the coordinate Bench in OA-988/2006 where a challenge to the order has been repelled and was dismissed. Basically what we find from the order is that though there has been a challenge to initiation of departmental inquiry but on consideration thereof, the issue was dealt with the parallel proceedings, i.e., departmental as well as criminal on the same set of facts. With the background of the decision of the Apex Court in Hindustan Petroleum Corporation Ltd. and Ors. v. Sarvesh Berry where as an exception to the simultaneous proceeding when the charges are identical, grave and involving complicated questions of law, what has been found is that in the criminal case the charge remained for criminal conspiracy in permitting the escape in judicial custody whereas in the disciplinary proceedings, the charge against the applicants is of breach of duty on a misconduct. The issue not attracted in the exception in Bharathidasan University's (supra), the request of the applicants to stay the proceedings was not adhered to. However, it was also observed that once the liberty has been given in Tribunal's order dated 15.7.2005, such an objection is barred by doctrine of estoppel, which is binding on the applicants as well.
45. Though doctrine of precedent binds a coordinate Bench with the ratio deci dendi arrived at in an earlier decision, but a disagreement can be arrived at, if there is an established procedure of law, as held by the Apex Court in SI Rooplal's case (supra). In the doctrine of precedent, what is not binding is the decision, which has been rendered in oblivion and in ignorance of statutory provisions. Though consistency in decision in judicial propriety warrants avoiding conflict and for which there has to be a constitution of a Larger Bench to settle the issue. However, once a decision of the coordinate Bench escapes to its notice the statutory provisions, which not only hold the field but also would facilitate administration of justice. In such an eventuality, what is paramount is the interest of justice in a judicial review. The decision, which is per incuriam, can be avoided being treated as a binding precedent.
46. It is unfortunate in the present case that before the issue of searching departmental inquiry could be finalized, a subsequent order of departmental inquiry has been set at rest, has created this anomalous situation, which could have been avoided if the Tribunal would have been assisted by the parties diligently in an effective manner. Yet there cannot be any escape from the fact that though as a rule in other cases a departmental proceedings simultaneously with the criminal trial, the decisions of the Apex Court, including the decision in Sarvesh Berry (supra) and the principles enunciated therein would hold the field, but there is a situation where the holding of simultaneous proceedings when operated and regulated by implication of statutory rules any decision to simultaneously proceed cannot be de hors the rules.
47. We have no hesitation to hold that the decision in OA-988/2006 has not at all considered the import and tenor of Rule 29 (3) of the Rules and is rendered in ignorance of it. As such, the said decision being per incuriam has no precedent value and not following the same, we would not violate the doctrine of precedent, as our constitutional goal is to uphold the majesty of law. In judicial propriety and judicial review as well what has to prevail is the administrative action should in accordance with statutory rules. The discretion to hold an inquiry should be judicious and if such an illegality is perpetuated, we would become party to the injustice, which will not only affect the administration of justice but would be against all canons of justice and an infraction to the rule of law, which is not expected from the Tribunal in a judicial review.
48. Now we revert back to rule 29 of the Rules. Once a criminal offence has been inferred against the applicants in their negligence of escape of a prisoner, then the searching departmental inquiry not conclusively holding the act of the applicants as a breach of discipline or misconduct and their reiteration in escape of a prisoner with a reference to the criminal case, holding of the searching inquiry has lost its object. Having registered a case Rule 29 (3) of the Rules ibid envisage only when proceeding at a time if an offence is presumed in negligence in an escape, then the only exception is the reasons to be recorded by the Additional C.P. to hold departmental inquiry if the searching departmental inquiry establishes the breach of discipline and negligence. In the present case, since neither the breach of discipline has been concluded in searching inquiry nor has the Joint C.P. recorded reasons to hold a departmental inquiry against the applicants, the order passed cannot be sustained.
49. It is relevant to note that the order of the departmental inquiry dated 30.3.2006 precedes an order of approval by the Joint C.P. If said order of Joint C.P. is against the rules and is without jurisdiction, a subsequent order of holding an inquiry would also not to be legal. It is settled that when the inception of a thing is illegal, i.e., null and void, subsequent proceedings would not ratify it and would not make it legal. However, assuming for the sake of a legal fiction or presumption in law that whatever has been held by the Division Bench in OA-988/2006 is lawful, in that event as well, what is permissible is holding of an inquiry but finding of guilt arrived at in the form of report of the inquiry officer, the inquiry would have to stall and kept in abeyance as final order cannot be issued till the verdict in criminal offence is available with the respondents. If a provision is included in the rules, the same has to be given effect to.
50. From the cumulative reading of Rule 29 of the Rules by infliction of removal or suspension on guilt, an intention of legislature is made clear to the effect that the simultaneous proceedings may go on but final order should not be passed, otherwise the provision would be redundant. However, as we have already held the decision of the Tribunal as per incuriam and the fact that the Coordinate Bench in OA-988/2006, which basically dealt with the issue of parallel proceedings and the stay of the departmental proceedings till the conclusion of the criminal trial as well, has not taken into consideration Rule 29 (3) of the Rules, is oblivious of the statutory provisions and in its ignorance as well.
51. There cannot be an estoppel against law. If a thing is to be done in a manner prescribed by rules and law, no other mode can be adopted.
A legal right accrued by way of statutory provisions cannot be defeated by the doctrine of estoppel. There cannot be a waiver or estoppel to the statutory rules, though the Tribunal in OA-2951/2004 accorded liberty to the respondents to hold an inquiry, would have to be construed legally as an inquiry in accordance with rules. When such an inquiry is not held as per the rules, the same has no legal effect and is an action nullity in law.
52. We are not sitting over the decision of the coordinate Bench of the Tribunal but what we feel is that the challenge to the disciplinary proceedings has not been considered in consonance with rules, as by the respondents themselves, the only inference of negligence is a criminal offence and no finding as to breach of discipline, etc., then an inference drawn by the respondents into the orders would not be a valid compliance of law.
53. In the result, for the foregoing reasons, we partly allow this OA.The action of the respondents to deem the applicants under suspension is set aside. The period from the date of dismissal till date of reinstatement has to be operated in accordance with FR 54 for pay and allowances, keeping in light the decision in Madhusudan Prasad's case (supra), within a period of two months from the date of receipt of a copy of this order.
54. As an anomalous situation has arisen whereby, though the decision in OA-988/2006 is per incuriam, the Tribunal has upheld the order of disciplinary proceedings dated 30.3.2006. Any finding to the contrary would amount to sit as an appellate authority over the decision. In judicial propriety on balancing the situation, though doctrine of precedent is to be respected but would not have repercussion of miscarriage of justice as well. Accordingly, though we are of the view that the inquiry initiated against the applicants is not in accordance with rules, yet the aspect of prerogative of the Department to hold inquiry cannot be disputed, however, the occasion would arise only when the final outcome of the judicial proceeding is known.
55. Accordingly, the order of searching inquiry, which is assailed in the present OA, is unsustainable in law but as it has merged into the order of departmental inquiry, we hold that the departmental inquiry now may be proceeded upto the stage of recording of finding but thereafter to be kept in abeyance and no final order shall be passed in the departmental inquiry till the verdict of the trial court is delivered. Further action would be taken in consonance with the decision of the trial court where law shall take its own course. No costs.