Dinesh Kumar vs Special Commissioner Of Police (Training)

L. Narasimha Reddy:, J

The applicant is working as Inspector(Ex.) in Delhi Police. Disciplinary proceedings were initiated against him by issuing an order dated 11.06.2019.

Thereafter an inquiry officer was appointed and he, in turn, framed charges in accordance with Rule 14(4) of Delhi Police (Punishment and Appeal)

Rules 1980. The applicant submitted a representation stating that the inquiry officer appointed in the proceedings is the one holding the look after

charge of the post of Additional DCP and that he is not competent to function as the Inquiry Officer in view of Clause 4 of Standing Order No.125/A-

20 by the Delhi Police. Reliance is also placed upon the OM dated 24.01.1963 issued by the Ministry of Home Affairs, Govt. of India. The

representation was rejected through order dated 07.07.2020. The inquiry officer recorded certain proceedings on 11.06.2020. This OA is filed

challenging the orders dated 11.06.2020 and 07.07.2020.

The applicant contends that according to the Standing Order No.125/A-20, the IO, nominated, in the disciplinary proceedings should be at least two

ranks above the officer being proceeded against, and in the instant case, though the ACP/Additional DCP is indicated as the one who can function as

IO, an ACP holding the charge of the Additional DPC is functioning as IO. It is also stated that the OM dated 24.01.1963 categorically directs that

any officer, who is entrusted with the current duties of a superior post can only perform administrative or financial powers but cannot exercise under

the law including CCA Rules.

On behalf of the respondents, a detailed counter affidavit is filed. It is stated that an in charge of the post of Additional DCP is competent to

perform duties attached to that post and there is no basis for the objection raised by the applicant. It is also stated that in the impugned order dated

07.07.2020, the issue was examined and appropriate answer was furnished. According to them, the IO has taken into account the various

developments that have taken place and passed the order on 11.06.2019 in this behalf, and that no illegality has crept into it.

We heard Mr. Hemant Kumar, learned counsel for the applicant and Mr. Amit Yadav with Ms. Esha Mazumdar, counsel for the respondents.

The short issue that arises for consideration in this OA is as to whether the ACP, who is holding the post of Additional DCP on incharge basis is

entitled to function as IO in the proceedings against an Inspector in Delhi Police. Normally, an IO is required to be the one who is senior to the

delinquent employee. However, the Delhi Police has issued a Standing Order No.125/A-20 indicating the various steps that are required to be taken in

the disciplinary proceedings. In Clause 4, it is stated as under:-

“xxx xxx xxx

v) All disciplinary authorities shall ensure that while sending order of DEs to an Enquiry Officer, all relevant documents, viz. draft summary of

allegations, list of witnesses, list of documents alongwith relied upon documents, should also be forwarded duly attested by the Enquiry Officer, who

conducted the P.E., or a gazetted officer, to avoid delay in the proceedings. The E.O. shall carefully examine whether the documents received with

the DE order are fully relied upon or otherwise. In the latter case, he shall bring the facts to the notice of the disciplinary authority in writing for

providing relevant material.

vi) Transfer of defaulters out of the District/Unit as a matter of routine should be avoided and should be done only in exceptional cases. Transferring

defaulter(s) to so called Non-Sensitive Units (NSUs) should also be discouraged. Such transfers entail Enquiry Officer and staff who are not

acquainted with the misconduct having to deal with the case. In a number of cases, it also results in delay in supply of required documents by the

erstwhile unit.â€​

From this, it is evident that in the disciplinary proceedings against an Inspector, the IO must be DCP or Additional DCP. It is not in dispute that the

IO appointed in the case of the applicant is an ACP, holding the charge of the post of Additional DCP. While the applicant contends that it is only an

officer who holds that post in substantive capacity, who can act as IO the respondents insist that even an incharge officer can discharge the functions.

It is here, that the OM dated 24.01.1963 issued by the Ministry of Home Affairs becomes relevant. The applicant has extracted the same at page-18

of the OA, and it reads as under:-

“An officer appointed to perform the current duties of an appointment can exercise administrative or financial power vested in the full-fledged

incumbent of the post but he cannot exercise statutory powers, whether those powers are derived direct from an Act of Parliament (e.g. Income Tax

Act) or Rules, Regulations and Bye-Laws made under various Articles of the Constitution (e.g., Fundamental Rules, Classification, Control and

Appeal Rules, Civil Service Regulations, Delegation of Financial Powers Rules etc.)â€​.

Apart from directing that the officer holding current duties of an appointment cannot discharge the statutory functions attached to that post, it

proceeded to elaborate and indicate the powers referable to Fundamental Rules and CCA Rules also. The IO is the one appointed under the Delhi

Police (Punishment and Appeal) Rules, CCA Rules. The prohibition contained in the OM dated 24.01.1963 as regards the appointment of the IO, in

the proceedings covered by the concerned disciplinary rules.

On behalf of the respondents a plea of waiver is taken. It is mentioned that the applicant did not raise any objection at the inception of the inquiry.

However, the objection once taken cannot be ignored. At the most the inaction on the part of the applicant may save the proceedings that have taken

place so far. When we indicated it, the learned counsel for the applicant did not raise any objection for this.

On behalf of the respondents reliance is placed upon Rule 9 of Delhi Police (General Conditions of Service) Rules, 1980. It is argued that a person

holding post on incharge basis would be entitled to discharge all the functions attached to that post. The context in which such powers are conferred

are substantially different. It is for the purpose of discharging the duties of policing. Even under the Cr.P.C, the station house officer can be any one in

the hierarchy in the order of seniority in the concerned police station depending on the circumstances. In other words, even a Head Constable can act

as a station house officer, in the absence of ACP, Inspector or Sub Inspector. When the Standing Order has clearly indicated the manner in which the

status of an inquiry officer is reckoned, general provision like Rule 9 cannot save the situation.

We, therefore, allow the OA directing that

(1) The existing officer by a DCP or Additional DCP who is holding that post in substantive capacity and to continue the proceedings from the stage,

where the charges were framed.

(2) If any witnesses were examined already, their statement shall be made part of the record and the applicant shall have the opportunity of cross

examining the witnesses, if not done earlier.

(3) The applicant shall not be entitled to raise any objection as to the charges framed or recording of evidence by the previous IO.

There shall be no order as to costs.