Naresh Kumar, Ex. Constable of Vs. Commissioner of Police, Joint - Court Judgment

Excerpt:
1. by virtue of this oa applicant has assailed initiation of departmental enquiry (de) vide order dated 6.3.2003, summary of allegations, finding recorded by the enquiry officer (eo), an order passed by the disciplinary authority (da) on 25.8.2004, dismissing applicant from service as well as an order passed on 5.7.2005 in appeal, upholding the punishment.2. applicant, a constable in delhi police, while functioning at sarita vihar flyover-t point, on a prg raid, which culminated into a report submitted by inspector, where the allegations of selling tickets to the vehicle drivers in the form of stickers when established, joint commissioner of police ordered a de. the summary of allegation issued to applicant alleges gross misconduct and negligence of alleged indulgence in malpractice against him by selling tickets to the commercial vehicle drivers, claiming rs. 500/- as hassle free stickers.on examination of prosecution and defence witnesses and on submission of written statement of defence, charges against applicant and other two co-defaulters were established. on representation the da imposed an extreme punishment of dismissal from service, which on appeal when upheld, gives rise to the present oa.3. shri anil singhal, learned counsel appearing for applicant, at the outset, has taken several legal contentions to assail the orders, including violation of rule 15 (2) of the delhi police (punishment & appeal) rules, 1980, cross examination of pw by the eo, asking leading questions to fill up the gaps by assuming the role of a prosecutor, non-examination of material witness, driver mahipal, reckoning the pe statement, discarding the statement recorded in the de, perversity of the finding etc.4. learned counsel of applicant states that on the prg report the joint commissioner of police has only recorded a finding as to initiation of de, but there is no specific finding as to registration of a criminal case. in this view of the matter, it is stated that when the complaint was there with the respondents of alleged indulgence earlier to the prg raid then as a cognizable offence it is mandated upon respondents to register or investigate a criminal case and has relied upon a decision of the apex court in ramesh kumari v. state to contend that if an information, disclosing a cognizable offence is made available to the officer incharge of the police station, satisfying the requirements of section 154 (1) of criminal procedure code, officer has no option except to enter substance thereof in the prescribed form to register a criminal case.5. learned counsel stated that the apex court recently in ca no.7212/2005 in vijay singh v. union of india decided on 23.2.2007, had an occasion to deal with rule 25 (2) of the rules ibid, where on reproduction of rule 15 (2), the following ratio has been delivered: a cursory reading of sub-rule 2 would clearly show that the said rule is mandatory. it has to be followed in letter and sprit. to appreciate the present controversy in proper perspective rule 15 (1) & (2) of the rules are reproduced: 15. preliminary enquiries (1) 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 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 case, a preliminary enquiry shall normally precede a departmental enquiry. (2) in case 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 public, departmental enquiry shall be ordered after obtaining the 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 regard to 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 reinstatement. 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 and ors. v. b. karunakar and ors.6. in the above backdrop learned counsel would contend that compliance of rule 15 (2) when mandatory is to be followed strictly in its letter and spirit and as the provision is couched in a way as a defence to the delinquent official. joint commissioner of police on accord of approval in a pe when approves holding of enquiry, before hand it is mandatory upon him to explore the possibility of registering a criminal case and if it is otherwise, record reasons therefor.7. learned counsel would contend that when a police officer is proceeded against for a criminal offence the scrutiny of evidence is in a stricter sense under the evidence act and this affords a better opportunity in a comprehensive manner to the police official to defend the charges rather than in the de.8. accordingly, for not recording a finding as to registration of a criminal case not only the dicta of the apex court and mandate of rule 15 (2) of the rules ibid is violated but also prejudiced the cause of applicant, which on deprivation of a reasonable opportunity is violative of article 14 of the constitution of india.9. learned counsel would also rely upon the decision of the tribunal in krishan kumar v. govt. of nct of delhi and ors. 2005 (1) atj 147, where relying upon the decision of the high court of delhi, the following observations have been made: 8. once the law requires a particular thing to be done in a particular manner then it must be strictly adhered to. the rules specifically require an application of mind by the additional commissioner of police to make choice as to whether there should be a criminal case registered against a person who is alleged to have committed a cognizable offence in his official relations or he is to withhold a departmental inquiry. this is a positive act on the part of the additional commissioner of police rather than mere procedural flaw. 9. in the present case before us, departmental file only shows that a note was submitted to the joint commissioner of police pertaining to the act of the applicant and that he should be placed under suspension and departmental action be taken. it was proved. there was no consideration as to if the criminal case should be registered against the applicant or not. therefore, the necessary ingredients to sub-rule 2 to rule 15 of the rules were not satisfied. 10. reliance on behalf of applicant is further placed on the division bench decision of the delhi high court in the case of commissioner of police and ors. v. r.c. shekharan cw-1553/2003 decided on 30-4-2003. the delhi high court while construing sub-rule 2 to rule 15 of the rules hold: 8. indeed, there cannot be any case law on the question that was arisen in the present case inasmuch as it is a question of fact whether there was any application of mind by the additional commissioner of police to the question. whether the respondent should be proceeded against by lodging a criminal case against him or by holding a departmental enquiry against him. as noticed by the tribunal, the file was never put up before the additional commissioner of police and hence there was no application of mind by him to this aspect of the matter. it is not as if in every case a departmental enquiry has to be initiated or that in every case a criminal prosecution has to be launched. it is for the additional commissioner of police to decide on the facts of each case what action is to be taken against a delinquent officer. in the present case, there was no such application of mind by the additional commissioner of police because the file was not put up before him in terms of rule 15 (2) of the rules. 11. learned counsel of respondents tries to distinguish the cited judgment contending that therein the file had never been submitted to the additional commissioner of police, while in the present case, it was so submitted. we are afraid that the cited cases, though correctly mentioned, will not be a ground to take away the ratio decidendi of the decision of the delhi high court. the delhi high court clearly held that there has to be an application of mind by the additional commissioner of police whether the concerned person is to be dealt with departmentally or a criminal case should be registered. in the present case, as already mentioned above and re-mentioned at the risk of repetition even the office noting does not indicate that it was ever contemplated that criminal case should be registered against the applicant. in this backdrop of the matter, we have no hesitation to hold that sub-rule 2 to rule 15 of the rules has been complied with.10. learned counsel would also place reliance on a decision of the delhi high court in union of india v. ravi dutt 1973 (1) slr 1222 (p&h), wherein a similar provision existed under rule 16.38 (1) and (2) of the punjab police rules, 1934, had come to be interpreted with the following observations: 19. now as regards the non-compliance with rule 16.38 (2) the facts already given show as per the extract of the letter dated 18-8-1959 by the superintendent of police mentioned earlier that even though permission was sought from the district magistrate to initiate departmental action, it was made clear that the question of launching criminal permission would be taken up after taking the departmental action. now reference to rule 16.38 (2) will show that when a complaint establishes a prima facie case, a judicial prosecution shall normally follow, the matter shall be disposed departmentally only if the district magistrate so orders for reasons to be recorded. no doubt in the sanction given by the district magistrate permission was only given for taking departmental action but it was not made clear whether the question of launching criminal prosecution was kept pending as had been suggested by the superintendent of police or had been given up. it appears to us that this is also one of the infirmities in the order of sanction because the district magistrate when he gives sanction under this rule has got to make up his mind whether the matter is to be disposed of departmentally or by a judicial prosecution and cannot leave the matter in an uncertain state of affairs, without deciding which alternative to follow. the more serious infirmity in the order of sanction accorded under rule 16.38 (2) by the district magistrate is absence of recording of any reason why a departmental action is being preferred. a reference to the order of sanction by the district magistrate dated 31-8-1959 shows that no reasons have been recorded at all for taking departmental action. no doubt it is mentioned that the preliminary investigation has established the fact that the a.s.i. is guilty of gross misconduct which warrants the initiation of disciplinary proceedings but the reasons that are to be recorded by the district magistrate as required by rule 16.38 (2) are for not proceeding with judicial prosecution and for proceeding departmentally as held in nand nandan sarup's case (fb). in this connection we may refer to a decision by one of us (patachari j.) in n.n. seth v. delhi administration etc. c.w. 158-d of 1966 decided on 4-9-1970.11. in the above view of the matter, learned counsel would contend that having failed to discharge the obligation the order passed, approving the de and subsequent orders are rendered illegal.12. on the other hand, ms. rashmi chopra, learned counsel appearing for respondents vehemently opposed the contentions and produced before us the departmental record, where sanction has been accorded by the joint commissioner of police is verbatim at page 136 of the oa, relied upon by applicant.13. learned counsel would contend that once the joint commissioner of police on the basis of pg report has decided to proceed applicant in a de, by necessary implication, registration of a criminal case is ruled out and it is valid compliance of rule 15 (2) of the rules ibid.14. learned counsel has distinguished the decision in vijay singh's case (supra) by contending that therein no approval under rule 15 (2) of the rules ibid was accorded, whereas in the present case the joint commissioner has accorded approval.15. we have carefully considered the rival contentions of the parties and perused the material on record.16. it is trite that when a provision in the rules is enacted it has some utility. it will not be otiose or redundant, as legislature or on delegated powers administrative authorities do not commit any mistake.accordingly, rule 15 (2) of the rules ibid obligates the joint commissioner of police to accord his approval on the basis of pe as to whether a criminal case should be registered or investigated or de should be held. the aforesaid connotes that the additional commissioner of police is not absolved from not recording reasons as to registration of a case, as the things which are to be done in a particular manner by the public functionary or even by the quasi-judicial authority are to be done in the manner prescribed and no deviation or other method should be adopted. the contention put-forth by the learned counsel of respondents as to approval of the da on the basis of the report of the prg and approval to the de, by necessary implication, discharges the obligation as to registration of a criminal case and investigation thereof is ruled out, cannot be countenanced in law. if between the two options additional commissioner of police has to pick up one, it is incumbent upon him to record reasons and apply its mind as to exclusion of other option. admittedly, when in the present case allegations constitute alleged cognizable offence against applicant in relation with public and in discharge of official duties the positive part of the rules, rather than a procedural flaw, that there should be application of mind or recording of reasons as to non-registration of a criminal case. from the perusal of the record, we do not find from the prg report or note submitted to the joint commissioner of police any indication as to possibility of registering a case and investigation thereof.17. the high court of delhi in ravi dutt's case (supra) while dealing with a provision in pari meteria with rule 15 (2) of the rules ibid observed that the sanction of district magistrate as to de is silent and is not clear as to whether the question of launching a criminal prosecution was kept pending and considered, as the matter has been left in larch in an uncertain state of affairs without deciding which alternative to follow, the orders have been set aside.18. an identical controversy when raised by constable tej pal singh before this tribunal in oa-132/2006 constable tej pal singh v. govt. of nct of delhi and ors. an order passed on 22.2.2007, observed as under: 16. rule 15 (2) of the rules ibid precedes in rule 15 (1) of the rules a pe, which has an object to collect evidence, material, identify the default and the defaulters. this is proceeded by a regular de. in a case where during the performance of official duties by a police official in relation with the public a cognizable offence is made out, then on the basis of conclusion arrived at in the pe it is obligated upon the authority to forward such a finding to the joint commissioner for taking action under rule 15 (2) of the rules, which, as a condition precedent, imposes upon the concerned authority an obligation to record a specific finding and take a decision as to whether the allegations constituting misconduct requires registration of a criminal case or a de can be straightway ordered. in the present case, the report submitted by the additional dcp (e) has been treated as a pe, as it has been referred to the joint commissioner of police for his approval. if the file has been sent for approval to the joint commissioner of police, for want of any other provision, it is to be implied that this has been sent under rule 15 (2) of the rules ibid. now, it is to be seen whether the joint commissioner has discharged his obligation under rule 15 (2) of the rules or not? from the perusal of the record submitted by the learned counsel of respondents what we find is that on taking cognizance of the report by dcp (e) disciplinary proceedings against all the five defaulters had been ordered and for which acp, vivek vihar, delhi was also held responsible for his failure to effectively supervise. it leaves no doubt in our mind that there has not been a recording as to the prospects of registration of a criminal case and investigation thereof. 17. in r.c. shekharan (supra), which is a binding on us and impliedly overrules any other decision of the coordinate bench, it is ruled that while according permission under rule 15 (2) of the rules, such a consideration is mandated. in such view of the matter, having not discharged its obligation under rule 15 (2) of the rules ibid, the orders passed, approving the de, by the joint commissioner of police is not a valid compliance of the rule and is not inconformity with it. 18. as to why prejudice has been caused in a case where the delinquent official, on examination under rule 15 (2) of the rules by the joint commissioner, is involved in a criminal case, is prima facie implicated in a criminal case to be registered and investigated. in such an event holding of de is obviated under rule 12 of the rules. it is also trite that scanning of evidence and its proof is more strict and rule-bound under the criminal procedure code, rather than in the de. so a police official gets better opportunity inconformity with the procedural rules to be defended in the criminal trial rather than in the de. 19. in such view of the matter on violation of rule 15 (2) when the orders, approving the de, is not inconformity with law, the subsequent orders, ordering a de, and consequent punishment imposed upon applicant are without jurisdiction and are void ab initio.19. rule 15 (2) and its character of a mandatory provision is no more res integra and laid at rest on finality by the apex court in vijay singh's case (supra), where holding that compliance of rule 15 (2) of the rules ibid is in the defence of the delinquent official, the same is to be strictly followed in its true letter and spirit. the contention that delinquent official is not produced or harassed unnecessarily in a de, approval should be accorded after due application of mind clearly establishes that the mandate as to prospects of holding a criminal case is the first option to be considered by the joint commissioner, as in the criminal case the procedure and the strict rules of evidence are different, where a better opportunity is accorded to the police official. the de in such a case being secondary and once a criminal case is initiated on the same charge; rule 12 obviates any punishment on account of the same allegations. in this view of the matter, non-examination of this issue is a failure to discharge obligation and non-compliance of rule in its true letter and spirit.20. what is required is an approval under rule 15 (2) by the joint commissioner is not on his ipsi dixit but on discharge in accordance with rules as an obligation. accordingly, the contention that decision in vijay singh's case (supra) would not apply, taken by learned counsel of respondents, cannot be countenanced.21. in the result, for the foregoing reasons, leaving other grounds open, this oa succeeds and is partly allowed. impugned orders are set aside. applicant shall be reinstated in service forthwith. the intervening period shall be treated for all other purposes as spent on duty except for back wages for which the doctrine of 'no work no pay' shall apply. however, respondents are not precluded, if so advised, to proceed from the stage of obtaining prior approval. no costs.

Judgment:
1. By virtue of this OA applicant has assailed initiation of departmental enquiry (DE) vide order dated 6.3.2003, summary of allegations, finding recorded by the enquiry officer (EO), an order passed by the disciplinary authority (DA) on 25.8.2004, dismissing applicant from service as well as an order passed on 5.7.2005 in appeal, upholding the punishment.

2. Applicant, a Constable in Delhi Police, while functioning at Sarita Vihar Flyover-T point, on a PRG raid, which culminated into a report submitted by Inspector, where the allegations of selling tickets to the vehicle drivers in the form of stickers when established, Joint Commissioner of Police ordered a DE. The summary of allegation issued to applicant alleges gross misconduct and negligence of alleged indulgence in malpractice against him by selling tickets to the commercial vehicle drivers, claiming Rs. 500/- as hassle free stickers.

On examination of prosecution and defence witnesses and on submission of written statement of defence, charges against applicant and other two co-defaulters were established. On representation the DA imposed an extreme punishment of dismissal from service, which on appeal when upheld, gives rise to the present OA.3. Shri Anil Singhal, learned Counsel appearing for applicant, at the outset, has taken several legal contentions to assail the orders, including violation of Rule 15 (2) of the Delhi Police (Punishment & Appeal) Rules, 1980, cross examination of PW by the EO, asking leading questions to fill up the gaps by assuming the role of a prosecutor, non-examination of material witness, driver Mahipal, reckoning the PE statement, discarding the statement recorded in the DE, perversity of the finding etc.

4. Learned Counsel of applicant states that on the PRG report the Joint Commissioner of Police has only recorded a finding as to initiation of DE, but there is no specific finding as to registration of a criminal case. In this view of the matter, it is stated that when the complaint was there with the respondents of alleged indulgence earlier to the PRG raid then as a cognizable offence it is mandated upon respondents to register or investigate a criminal case and has relied upon a decision of the Apex Court in Ramesh Kumari v. State to contend that if an information, disclosing a cognizable offence is made available to the officer incharge of the police station, satisfying the requirements of Section 154 (1) of Criminal Procedure Code, officer has no option except to enter substance thereof in the prescribed form to register a criminal case.

5. Learned Counsel stated that the Apex Court recently in CA No.7212/2005 in Vijay Singh v. Union of India decided on 23.2.2007, had an occasion to deal with Rule 25 (2) of the Rules ibid, where on reproduction of Rule 15 (2), the following ratio has been delivered: A cursory reading of Sub-rule 2 would clearly show that the said Rule is mandatory. It has to be followed in letter and sprit.

To appreciate the present controversy in proper perspective Rule 15 (1) & (2) of the Rules are reproduced: 15. Preliminary enquiries (1) 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 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 case, a preliminary enquiry shall normally precede a departmental enquiry.

(2) In case 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 public, departmental enquiry shall be ordered after obtaining the 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 regard to 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 reinstatement. 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 and Ors. v. B. Karunakar and Ors.

6. In the above backdrop learned Counsel would contend that compliance of Rule 15 (2) when mandatory is to be followed strictly in its letter and spirit and as the provision is couched in a way as a defence to the delinquent official. Joint Commissioner of Police on accord of approval in a PE when approves holding of enquiry, before hand it is mandatory upon him to explore the possibility of registering a criminal case and if it is otherwise, record reasons therefor.

7. Learned Counsel would contend that when a police officer is proceeded against for a criminal offence the scrutiny of evidence is in a stricter sense under the Evidence Act and this affords a better opportunity in a comprehensive manner to the police official to defend the charges rather than in the DE.8. Accordingly, for not recording a finding as to registration of a criminal case not only the dicta of the Apex Court and mandate of Rule 15 (2) of the Rules ibid is violated but also prejudiced the cause of applicant, which on deprivation of a reasonable opportunity is violative of Article 14 of the Constitution of India.

9. Learned Counsel would also rely upon the decision of the Tribunal in Krishan Kumar v. Govt. of NCT of Delhi and Ors. 2005 (1) ATJ 147, where relying upon the decision of the High Court of Delhi, the following observations have been made: 8. Once the law requires a particular thing to be done in a particular manner then it must be strictly adhered to. The Rules specifically require an application of mind by the Additional Commissioner of Police to make choice as to whether there should be a criminal case registered against a person who is alleged to have committed a cognizable offence in his official relations or he is to withhold a departmental inquiry. This is a positive act on the part of the Additional Commissioner of Police rather than mere procedural flaw.

9. In the present case before us, departmental file only shows that a note was submitted to the Joint Commissioner of Police pertaining to the act of the applicant and that he should be placed under suspension and departmental action be taken. It was proved. There was no consideration as to if the criminal case should be registered against the applicant or not. Therefore, the necessary ingredients to Sub-rule 2 to Rule 15 of the Rules were not satisfied.

10. Reliance on behalf of applicant is further placed on the Division Bench decision of the Delhi High Court in the case of Commissioner of Police and Ors. v. R.C. Shekharan CW-1553/2003 decided on 30-4-2003. The Delhi High Court while construing Sub-rule 2 to Rule 15 of the Rules hold: 8. Indeed, there cannot be any case law on the question that was arisen in the present case inasmuch as it is a question of fact whether there was any application of mind by the Additional Commissioner of Police to the question. Whether the Respondent should be proceeded against by lodging a criminal case against him or by holding a departmental enquiry against him. As noticed by the Tribunal, the file was never put up before the Additional Commissioner of Police and hence there was no application of mind by him to this aspect of the matter. It is not as if in every case a departmental enquiry has to be initiated or that in every case a criminal prosecution has to be launched. It is for the Additional Commissioner of Police to decide on the facts of each case what action is to be taken against a delinquent officer. In the present case, there was no such application of mind by the Additional Commissioner of Police because the file was not put up before him in terms of Rule 15 (2) of the Rules.

11. Learned Counsel of respondents tries to distinguish the cited judgment contending that therein the file had never been submitted to the Additional Commissioner of Police, while in the present case, it was so submitted. We are afraid that the cited cases, though correctly mentioned, will not be a ground to take away the ratio decidendi of the decision of the Delhi High Court. The Delhi High Court clearly held that there has to be an application of mind by the Additional Commissioner of Police whether the concerned person is to be dealt with departmentally or a criminal case should be registered. In the present case, as already mentioned above and re-mentioned at the risk of repetition even the office noting does not indicate that it was ever contemplated that criminal case should be registered against the applicant. In this backdrop of the matter, we have no hesitation to hold that Sub-rule 2 to Rule 15 of the Rules has been complied with.

10. Learned Counsel would also place reliance on a decision of the Delhi High Court in Union of India v. Ravi Dutt 1973 (1) SLR 1222 (P&H), wherein a similar provision existed under Rule 16.38 (1) and (2) of the Punjab Police Rules, 1934, had come to be interpreted with the following observations: 19. Now as regards the non-compliance with Rule 16.38 (2) the facts already given show as per the extract of the letter dated 18-8-1959 by the Superintendent of Police mentioned earlier that even though permission was sought from the District Magistrate to initiate departmental action, it was made clear that the question of launching criminal permission would be taken up after taking the departmental action. Now reference to Rule 16.38 (2) will show that when a complaint establishes a prima facie case, a judicial prosecution shall normally follow, the matter shall be disposed departmentally only if the District Magistrate so orders for reasons to be recorded. No doubt in the sanction given by the District Magistrate permission was only given for taking departmental action but it was not made clear whether the question of launching criminal prosecution was kept pending as had been suggested by the Superintendent of Police or had been given up. It appears to us that this is also one of the infirmities in the order of sanction because the District magistrate when he gives sanction under this Rule has got to make up his mind whether the matter is to be disposed of departmentally or by a judicial prosecution and cannot leave the matter in an uncertain state of affairs, without deciding which alternative to follow. The more serious infirmity in the order of sanction accorded under Rule 16.38 (2) by the District Magistrate is absence of recording of any reason why a departmental action is being preferred. A reference to the order of sanction by the District Magistrate dated 31-8-1959 shows that no reasons have been recorded at all for taking departmental action. No doubt it is mentioned that the preliminary investigation has established the fact that the A.S.I. is guilty of gross misconduct which warrants the initiation of disciplinary proceedings but the reasons that are to be recorded by the District Magistrate as required by Rule 16.38 (2) are for not proceeding with judicial prosecution and for proceeding departmentally as held in Nand Nandan Sarup's case (FB).

In this connection we may refer to a decision by one of us (Patachari J.) in N.N. Seth v. Delhi Administration etc. C.W. 158-D of 1966 decided on 4-9-1970.

11. In the above view of the matter, learned Counsel would contend that having failed to discharge the obligation the order passed, approving the DE and subsequent orders are rendered illegal.

12. On the other hand, Ms. Rashmi Chopra, learned Counsel appearing for respondents vehemently opposed the contentions and produced before us the departmental record, where sanction has been accorded by the Joint Commissioner of Police is verbatim at page 136 of the OA, relied upon by applicant.

13. Learned Counsel would contend that once the Joint Commissioner of Police on the basis of PG report has decided to proceed applicant in a DE, by necessary implication, registration of a criminal case is ruled out and it is valid compliance of Rule 15 (2) of the Rules ibid.

14. Learned Counsel has distinguished the decision in Vijay Singh's case (supra) by contending that therein no approval under Rule 15 (2) of the Rules ibid was accorded, whereas in the present case the Joint Commissioner has accorded approval.

15. We have carefully considered the rival contentions of the parties and perused the material on record.

16. It is trite that when a provision in the Rules is enacted it has some utility. It will not be otiose or redundant, as legislature or on delegated powers administrative authorities do not commit any mistake.

Accordingly, Rule 15 (2) of the Rules ibid obligates the Joint Commissioner of Police to accord his approval on the basis of PE as to whether a criminal case should be registered or investigated or DE should be held. The aforesaid connotes that the Additional Commissioner of Police is not absolved from not recording reasons as to registration of a case, as the things which are to be done in a particular manner by the public functionary or even by the quasi-judicial authority are to be done in the manner prescribed and no deviation or other method should be adopted. The contention put-forth by the learned Counsel of respondents as to approval of the DA on the basis of the report of the PRG and approval to the DE, by necessary implication, discharges the obligation as to registration of a criminal case and investigation thereof is ruled out, cannot be countenanced in law. If between the two options Additional Commissioner of Police has to pick up one, it is incumbent upon him to record reasons and apply its mind as to exclusion of other option. Admittedly, when in the present case allegations constitute alleged cognizable offence against applicant in relation with public and in discharge of official duties the positive part of the rules, rather than a procedural flaw, that there should be application of mind or recording of reasons as to non-registration of a criminal case. From the perusal of the record, we do not find from the PRG report or note submitted to the Joint Commissioner of Police any indication as to possibility of registering a case and investigation thereof.

17. The High Court of Delhi in Ravi Dutt's case (supra) while dealing with a provision in pari meteria with Rule 15 (2) of the Rules ibid observed that the sanction of District Magistrate as to DE is silent and is not clear as to whether the question of launching a criminal prosecution was kept pending and considered, as the matter has been left in larch in an uncertain state of affairs without deciding which alternative to follow, the orders have been set aside.

18. An identical controversy when raised by Constable Tej Pal Singh before this Tribunal in OA-132/2006 Constable Tej Pal Singh v. Govt. of NCT of Delhi and Ors. an order passed on 22.2.2007, observed as under: 16. Rule 15 (2) of the Rules ibid precedes in Rule 15 (1) of the Rules a PE, which has an object to collect evidence, material, identify the default and the defaulters. This is proceeded by a regular DE. In a case where during the performance of official duties by a police official in relation with the public a cognizable offence is made out, then on the basis of conclusion arrived at in the PE it is obligated upon the authority to forward such a finding to the Joint Commissioner for taking action under Rule 15 (2) of the Rules, which, as a condition precedent, imposes upon the concerned authority an obligation to record a specific finding and take a decision as to whether the allegations constituting misconduct requires registration of a criminal case or a DE can be straightway ordered. In the present case, the report submitted by the Additional DCP (E) has been treated as a PE, as it has been referred to the Joint Commissioner of Police for his approval. If the file has been sent for approval to the Joint Commissioner of Police, for want of any other provision, it is to be implied that this has been sent under Rule 15 (2) of the Rules ibid. Now, it is to be seen whether the Joint Commissioner has discharged his obligation under Rule 15 (2) of the Rules or not? From the perusal of the record submitted by the learned Counsel of respondents what we find is that on taking cognizance of the report by DCP (E) disciplinary proceedings against all the five defaulters had been ordered and for which ACP, Vivek Vihar, Delhi was also held responsible for his failure to effectively supervise. It leaves no doubt in our mind that there has not been a recording as to the prospects of registration of a criminal case and investigation thereof.

17. In R.C. Shekharan (supra), which is a binding on us and impliedly overrules any other decision of the coordinate Bench, it is ruled that while according permission under Rule 15 (2) of the Rules, such a consideration is mandated. In such view of the matter, having not discharged its obligation under Rule 15 (2) of the Rules ibid, the orders passed, approving the DE, by the Joint Commissioner of Police is not a valid compliance of the Rule and is not inconformity with it.

18. As to why prejudice has been caused in a case where the delinquent official, on examination under Rule 15 (2) of the Rules by the Joint Commissioner, is involved in a criminal case, is prima facie implicated in a criminal case to be registered and investigated. In such an event holding of DE is obviated under Rule 12 of the Rules. It is also trite that scanning of evidence and its proof is more strict and rule-bound under the Criminal Procedure Code, rather than in the DE. So a police official gets better opportunity inconformity with the procedural rules to be defended in the criminal trial rather than in the DE. 19. In such view of the matter on violation of Rule 15 (2) when the orders, approving the DE, is not inconformity with law, the subsequent orders, ordering a DE, and consequent punishment imposed upon applicant are without jurisdiction and are void ab initio.

19. Rule 15 (2) and its character of a mandatory provision is no more res integra and laid at rest on finality by the Apex Court in Vijay Singh's case (supra), where holding that compliance of Rule 15 (2) of the Rules ibid is in the defence of the delinquent official, the same is to be strictly followed in its true letter and spirit. The contention that delinquent official is not produced or harassed unnecessarily in a DE, approval should be accorded after due application of mind clearly establishes that the mandate as to prospects of holding a criminal case is the first option to be considered by the Joint Commissioner, as in the criminal case the procedure and the strict rules of evidence are different, where a better opportunity is accorded to the police official. The DE in such a case being secondary and once a criminal case is initiated on the same charge; Rule 12 obviates any punishment on account of the same allegations. In this view of the matter, non-examination of this issue is a failure to discharge obligation and non-compliance of rule in its true letter and spirit.

20. What is required is an approval under Rule 15 (2) by the Joint Commissioner is not on his ipsi dixit but on discharge in accordance with rules as an obligation. Accordingly, the contention that decision in Vijay Singh's case (supra) would not apply, taken by learned Counsel of respondents, cannot be countenanced.

21. In the result, for the foregoing reasons, leaving other grounds open, this OA succeeds and is partly allowed. Impugned orders are set aside. Applicant shall be reinstated in service forthwith. The intervening period shall be treated for all other purposes as spent on duty except for back wages for which the doctrine of 'no work no pay' shall apply. However, respondents are not precluded, if so advised, to proceed from the stage of obtaining prior approval. No costs.