Hon’ble Mr. Tarun Shridhar, Member (A):

1. Sh. Sher Singh, the applicant herein was a SubInspector(Executive) in Delhi Police. During the course of his service, on account of certain developments, penalty of dismissal from service was imposed upon him vide order dated 27.08.2018. His statutory appeal filed against the said order too did not find favour and stood dismissed vide order dated 02.01.2019. He puts challenge to both these orders in the present OA seeking the following relief vide Paragraph 8:

"(a)Pass an appropriate order or direction quashing the impugned order dated 27.08.2018 (Annexure A1) passed by the Respondent No. 3 and Order dated 02.01.2019 (Annexure A2) passed by the Respondent No. 2, and allow the OA in the facts and circumstances of the matter.

(b) Direct the respondents to re-instate the applicant in service from the date of dismissal with all consequential benefits along with interest at the rate applicable for GPC.

(c) The cost of the application be provided for; and

(d) To pass any such order/orders as maybe deemed fit and proper by the Hon'ble Tribunal in the facts and circumstances of the case."

2. Applicant has represented himself and truthfully narrated the background and history of the case. During the year 1991 precisely on 20.12.1991, the applicant along with some of his fellow colleagues was named as an accused in FIR No. 430/2019 registered in Police Station Lahori Gate under Sections 304/330/348/34 of IPC. The outcome of this FIR was conviction of the applicant by the Court of the Additional Sessions Judge vide an order dated 13.01.2004 under Section 304/34 IPC. The applicant was ordered to undergo rigorous imprisonment for a period of five years besides imposition of fine of Rs. 50,000/-.

3. To cut a long story short, the applicant has admitted that the challenge to this order by way of an appeal in the Hon'ble High Court, subsequent appeal in the Hon'ble Supreme Court followed by a Review Petition, all led to disappointment for him as neither the appeals nor the Review Petition were allowed. The applicant underwent the sentence awarded to him

4. Meanwhile, the applicant had been placed under suspension for a long period of nearly ten years. The respondents invoked the provisions of Rule 11(1) of Delhi Police (Punishment and Appeal) Rules, 1980 and imposed a penalty of dismissal from service upon him and his subsequent appeal against said decision too has been rejected. Rule 11(1) reads as under:

"Rule 11. Punishment on judicial conviction.-

(1) When a report is received from an official source, e.g. a court or the prosecution agency, that a subordinate rank has been convicted in a criminal court of an offence, involving moral turpitude or on charge of disorderly conduct in a state of drunkenness or in any criminal case, the disciplinary oathority shall consider the nature and gravity of the offence and if in its opinion that the ofence is such as would render further retention of the convicted police officer in service, prima facie undesirable, it may forthwith make an order dismissing or removing him from service without calling upon him to show cause against the proposed action provided that no such order shall be passed till such time thr result of the first appeal that may have been filed by such police officer is known."

5. Applicant has argued that Rule 11(1) has to be read with in harmony with Article 311(2) of the Constitution of India. For the sake of clarity, the said Article is reproduced below:

"311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Unior or a State-

[(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges:

[Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed:

Provided further that this clause shall not apply-]

(a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or

(b) where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or

(c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State, it is not expedient to hold such inquiry."

6. Drawing attention to the specific language of the said Article, the applicant has argued that prior to passing any order, the Disciplinary Authority as also the Appellate Authority were obliged to evaluate the conduct of the applicant which had led to his conviction and only after satisfying themselves that the conduct was such as warranted the extreme punishment of dismissal, could they have resorted to the same. He draws specific attention to an observation made by the Appellate Authority in its order which expressly records that " The role of the appellant in the case was not looked into, instead his conviction in the matter was considered sufficient for taking action under Rule 11(1) Delhi Police (Punishment & Appeal) Rule 1980". He submits that this observation/inference of the Appellate Authority is in contravention to the specific provision of Article 311(2) of the Constitution of India which unambiguously stipulates that the conduct which has led to conviction on a criminal charge is to be looked into before imposing any penalty.

7. Drawing attention to the case of Union of India v. Tulsi Ram Patel, (1985)3 SCC 398 [LQ/SC/1979/271] , adjudicated upon by the Hon'ble Apex Court and further relied upon by the Hon'ble High Court of Delhi, in The Commissioner of Police & Ors. v. Sukhbir Singh, WP(C) No. 1956/2013, applicant submits that these judgments too state with great clarity that Rule 11(1) would be subservient to specific provisions of Article 311 and have to be read as such.

8. He has drawn special attention to Paragraphs 17, 22 and 26 of Sukhbir Singh's case (supra) which quotes the Tulsi Ram Patel's case. The said Paragraphs read as under:

"17. From the reading of the aforesaid paras of the judgment in Tulsiram Patel's case (supra) the following position emerges:-

(1) The Rules framed by the President or the Governor of a State must conform to the provisions of the Constitution with regard to legislative competence and division of legislative powers.

(2) Article 309 is subject to Article 310(1) and therefore any provision of any Act or Rule made under Article 309 restricting the exercise of pleasure by the president or the Governor not being an express provision of the Constitution must be held to be unconstitutional.

(3) The phrase "this clause shall not apply" appearing in the second proviso to Article 311(2) of the Constitution is mandatory in nature and not directory. It is in the nature of prohibiting injunction restraining the disciplinary authority from holding an inquiry under 311 (2) or giving any kind of an opportunity to the concerned Government servant. Thus, there is no scope for introducing into the second proviso any kind of inquiry or opportunity by a process of inference or application. The express language of the second proviso is inevitable and there can be no escape from it. The same has been inserted as a matter of public policy and in public interest and for public good.

(4) Article 309 opens with the words "Subject to the provisions of this Constitution" which implies that Rules made under the provision to Article 309 must be subject to the provisions of the Constitution and thus such Rules must be in consonance with Article 310(1) and Article 311 and where a Disciplinary Authority comes to know that a Government servant has been convicted on a criminal charge it must consider whether his conduct which has led to his conviction warrants the imposition of penalty under clause (a) of Second Proviso to Article 311(2).

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22. Section 21 of thecommences with the words 'Subject to the provisions of Article 311 of the Constitution and Rules'. The purport of these words would mean that the punishments listed therein are to be imposed in accordance with the conditions/procedures/safeguards as prescribed in Article 311 of the Constitution which would include Article 311(2)(a) of the Constitution. In other words, no punishment can be imposed in violation of Article 311 of the Constitution.

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26. The Supreme Court has, in Tulsiram Patel's case (supra), inter-alia held that the service rules may reproduce the provisions of the second proviso authorizing the disciplinary authority to dispense with the inquiry contemplated by clause (2) of Article 311 in 3 cases mentioned in the second proviso to that clause or anyone or more of them. Such a rule however cannot be valid and constitutional without reference to the second proviso to Article 311(2) and cannot be read apart from it. The Supreme Court held that while the source of authority of a particular officer to act as a disciplinary authority and to dispense with the inquiry is derived from the service rules, the source of the power to dispense with the inquiry is derived from the second proviso to Article 311(2) and not from any service rules. The Supreme Court held that there is a well established distinction between the source of authority to exercise its power and source of such power."

9. The applicant reiterates that Rule 11 (1) of the Delhi Police (Punishment and Appeal) Rules cannot be invoked in isolation and it has necessarily to be read along with the provisions of Article 311 (2) of the Indian Constitution. He strongly argues once again that unless the conduct which led to conviction is examined, penalty under Rule 11 (1) cannot be imposed. He submits that there is no ambiguity with respect to this argument in view of what has been held by the Hon'ble Apex Court in Tulsi Ram Patel's case. He draws our attention to the observations and directions of the Hon'ble Apex Court in the said case, specifically paras 62 and 127. The purport of these observations/directions is that to impose the penalty of dismissal or removal or even reduction in rank, the conduct of the Government servant establishing the guilt must first be assessed.

10. The Hon'ble Apex Court had held, and this precisely is what the applicant in person has argued, that where a Disciplinary Authority gets confirmation with respect to conviction on a criminal charge of a Government servant, it must validate the conduct which led to such a conviction and only thereafter decide whether the said conduct leading to conviction, merits further action of imposition of the penalty. The Hon'ble Court had further elaborated that besides the judgment of the Criminal Court, all the facts and circumstances of the case need to be gone through. In addition, the applicant also places on record an order of the Allahabad High Court in Writ - A No. 57979 of 2011 in the case of Ram Vikash vs. State of UP & Ors., in which the Hon'ble High Court relying upon the aforementioned judgment of Tulsi Ram Patel has highlighted that mere conviction will not be a sufficient ground to impose a penalty of dismissal or removal or reduction in rank, unless it has necessarily preceded examination of the conduct which has been substantially established.

11. In the case before the Hon'ble Allahabad High Court, the applicant was aggrieved by the action of the respondents of imposing the penalty upon him, and relying upon the judgment in Tulsi Ram Patel case and the petition had been allowed and he was ordered to be reinstated. The applicant submits that his case also deserves to be decided on similar analogy.

12. Sh. H.A. Khan, learned counsel for the respondents made us go through the background and history of the case, arguing that the conduct of the applicant already stood established by the fact of his conviction, leading to 5 years of rigorous imprisonment. He further draws our attention to the fact that challenge to this conviction was unsuccessful upto the level of the Hon'ble Apex Court. Once the matter is conclusively decided upto the Hon'ble Apex Court, no further inquiry or examination is warranted, he argues.

13. Drawing support from the averments made in the counter reply, Mr. H.A. Khan, learned counsel for the respondents argues that the applicant has not been able to point out any procedural infirmity in the proceedings against him. The respondents have passed the order of dismissal strictly within the Authority conferred upon them by the relevant rules. In fact, he submits that the action of the respondents is also within the ambit of the observations/directions of Hon'ble Apex Court in the Tulsi Ram Patel case.

14. We have heard the arguments at great length and have also gone through the voluminous pleadings on record.

15. The applicant has argued his entire case on a single ground that in terms of the provisions of Article 311(2), penalty of dismissal under Rule 11(1) of Delhi Police (Punishment & Appeal) Rules, 1980, could not have been imposed, unless the disciplinary authority had carefully examined and evaluated his conduct which led to his conviction on a criminal charge. He has argued that the appellate authority has made a categorical statement in the appellate order that the role of the applicant was not looked into and only the fact of conviction became a ground for imposing the penalty of dismissal in terms of Rule 11(1) of Delhi Police (Punishment & Appeal) Rules. His argument is that there is no ambiguity in Article 311(2) of the Constitution and since there is an admission of the appellate authority that role of the applicant was not looked into and mere conviction was considered sufficient to impose penalty, the order is not sustainable being in contravention of the specific provision of Article 311(2). While arguing on this sole ground at length, the applicant has also drawn support from the judgments of the Hon’ble Apex Court in Sukhbir Singh and Tulsi Ram Patel’s case, relevant extracts of which have been extensively quoted in one of the preceding paragraphs.

16. Curiously, learned counsel for the respondents has also found support in the Tulsi Ram Patel’s case decided by the Hon’ble Apex Court and tried to establish that the action of the respondents is not only strictly in adherence to the relevant rules but also in terms of the observations and directions of the Hon’ble Apex Court in Tulsi Ram Patel’s case. He has further argued that once the issue has been settled up to the level of the Hon’ble Apex Court, which upheld the conviction of the applicant, no further evaluation of any of the issues, including the conduct of the applicant, is called for, nor is there any procedural infirmity in the proceeding against the applicant, he has argued.

17. There is no dispute with the respect to the fact that the applicant stood convicted under Section 304/34 of IPC. He was subjected to a punishment of rigorous imprisonment for a period of five years along with imposition of a fine of Rs.50,000/-. The conviction was upheld up to the level of the Hon’ble Supreme Court. On account of this, the respondents invoked the provisions of Rule 11(1) of Delhi Police (Punishment & Appeal) Rules which provide for dismissal from service without even a show cause notice. If the disciplinary authority is of the opinion that the nature and gravity of the offence is such as to render the officer unfit for further retention in service, we cannot find fault with the opinion formed by the disciplinary authority and on the basis of such opinion, passing an order of dismissal. The disciplinary authority has acted within the confines of power vested in it. It may be pertinent to mention here once again that the offence for which the applicant was convicted, was under Section 304 of the IPC, a section dealing with a culpable homicide read with Section 34; the incident was of custodial death.

18. While we appreciate that the provisions of the Constitution call for going into the conduct which had led to conviction, what further examination of such conduct was warranted in the instant matter is not explicable once conviction had taken place and upheld up to the level of the Hon’ble Apex Court. It is but obvious that the evaluation and examination of the conduct which led to the conviction and punishment cannot be looked into any further. In fact, once the issue had been finally and conclusively settled in the Hon’ble Supreme Court, further review of the conduct by the respondents would have been a blatant overreach of their jurisdiction by the respondents in terms of their powers under Delhi Police (Punishment and Appeal) Rules read with Article 311(2) of the Constitution. No matter how many times we read Sukhbir Singh and Tulsi Ram Patel judgments of the Hon’ble Apex Court, which the applicant is relying upon, we do not get even a minor hint that these could come to his rescue against the background and history of the case. In our considered view, it is an open and shut case. The applicant stood convicted and was subjected to rigorous imprisonment of five years, challenge to the same in appeal in the Hon’ble High Court was unsuccessful and so was the review before the Hon’ble Apex Court.

19. In these circumstances, Section 11(1) of the Delhi Police (Punishment & Appeal) Rules, 1980 gets invoked and the action of the respondents in imposing the penalty of dismissal from service is within their powers under this section, and further, they have exercised this power after due consideration of the entire gamut of the facts and circumstances.

20. In view of what has been elaborately discussed above, the Original Application stands dismissed, being devoid of merits. There shall be no order as to costs.