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Judgment
Anil Kumar, J.—The present petition is filed under Article 226 of the Constitution of India for the issuance of a writ in the nature of certiorari for quashing the impugned order dated 18.05.1995; 06.02.1996 and 28.01.1997, thus, praying that the Petitioner be reinstated in the services forthwith, as per his seniority status along with all the consequential benefits which follow from such reinstatement as per his entitlement at the seniority level.
The Petitioner was enlisted as Constable (driver) with No. 4B 52/DAP (PIS No. 28824045). It was alleged against him that on the night intervening 20/21.08.1993, as Motor Cycle rider, he took the Government vehicle No. DBL- 2661 from M T Park v. Battalion DAP after collecting the keys from the drivers? barrack kept by Constable (driver) Bani Singh and went to Hauz Quazi with some ulterior motive along with another person who could not be identified. There he intercepted Truck No. USC-8265 at Chawri Bazar Nukkar and demanded entry money from the driver of the truck. On being seen and approached by SHO Hauz Quazi, he escaped from the scene and while fleeing from scene he hit a cycle rickshaw also. Though he was chased by the Police Control Room Staff, he could not be apprehended at that time. 3. An enquiry was held against the Petitioner on these allegations in accordance with rules and regulation and he was given a personal hearing. It was held by the Disciplinary Authority that the charges against the Petitioner were made out. Consequently he was awarded punishment of withholding his one annual increment on temporary basis and treating the suspension period from 26.08.1993 to 28.04.1995 as "not spent on duty" vide order dated 18.05.1995.
Against the order dated 18.05.1995, the Petitioner filed an appeal to the Appellate Authority. The Appellate Authority served a show cause notice dated 26.10.1995 upon the Petitioner for enhancement of punishment exercising its powers vested in Rule 25(B) (iii) of Delhi Police (Punishment & Appeal) Rules, 1994. After considering the reply to the show cause notice and the appeal of the Petitioner, the Appellate Authority instead of setting aside the punishment awarded by the disciplinary authority, awarded enhanced punishment of removal from service by impugned order dated 06.02.1996 on account of grave misconduct, indiscipline and irresponsibility on the part of the Petitioner.
Aggrieved by the impugned order dated 6th February, 1996 awarding the punishment of removal from service, the Petitioner filed an application u/s 19 of the Administrative Tribunal''s Act to the Central Administrative Tribunal contending that the Appellate Authority ignored all the norms of justice and the order passed by him is not sustainable in the facts and circumstances and in law. He also contended that in the show cause notice, there was no mention of his appeal and his appeal had not been placed before the competent authority and considered by him.
The Tribunal dismissed the Petitioner''s application holding that there are no grounds for review of order of the Appellate Authority relying on Supreme Court''s decisions in UOI and Ors. v. Upendra Singh (1994) 27 ATC 200; H B Gandhi, Excise & Taxation Officer-cum- Assessing Authority, Karnal v. Gopi Nath & Sons 1992 Supp. (2) SCC
312 where it was held that:
The purpose of judicial review is to ensure that the individual receives fair treatment and not to ensure that the authority after according fair treatment reaches, on a matter which it is authorized by law to decide, a conclusion which is correct in the eyes of the Court. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made.
Against the order of the Tribunal dismissing his original application against the order of the Appellate Authority, the Petitioner filed the present writ petition on 31.03.1997 contending inter alia that the order of the Tribunal and its findings are perverse and bad in law. The Petitioner pleaded that the Rule 25(B) (iii) of Delhi Police (Punishment & Appeal) Rules, 1994, under which the show cause notice was issued to him by the appellate authority for enhancement of punishment and order of removal from service, has been struck down as ultra vires by this Court. The Petitioner relied upon the Head Constable Rajpal Singh and Ors. etc v. Union of India & Ors, decided by the Full Bench of the Central Administrative Tribunal, Principal Bench, New Delhi by order dated 14th September, 2000 holding that Section 25B of the Delhi Police (Punishment & Appeal) Rules, 1994 was ultra vires. The Petitioner also relied on the order dated 17th September, 2002 passed by this Court in CWP 2265 of 2001 upholding the decision of the Tribunal holding that the said rule is ultra vires. Reliance has also been placed on Ex- Constable Brij Bhushan No. 2406/DAP v. Union of India and Ors., W.P. (Civil) No. 6437 of 1999, decided by this High Court vide order dated 21st August, 2007 upholding the striking down of Rule 25(B) of Delhi Police (Punishment & Appeal) Rules, 1994 and repelled the plea that holding the said rule as ultra vires would be prospective. An appeal being Civil Appeal 8301/ 2008 was also filed in the Supreme Court against the order of the High Court striking down Rule 25 B of Delhi Police (Punishment & Appeal) Rules, 1994 which was also dismissed by order dated 9th July, 2008 by the Apex Court.
On the basis of these subsequent developments whereby the rule under which the punishment of the Petitioner was enhanced to removal from service was held to be ultra vires, the Petitioner was allowed to take this as additional grounds in his application No. C.M. No. 1475 of 2010.
The Learned Counsel for the Respondent states that if the removal of the Petitioner is set aside on the ground of striking down Rule 25(B) (iii) of Delhi Police (Punishment & Appeal) Rules, 1994, the department would be burdened with heavy financial liability of back wages despite the fact that the challenge to the penalty of withholding of increment on temporary basis, would still be pending.
Learned Counsel for the Petitioner, however, on instructions, states that in case the order of removal is set aside, the Petitioner shall not claim the back wages from 06th February, 1996, the day the order of removal was passed by the Appellate Authority exercising the power of review under the Rule 25B (iii) of Delhi Police (Punishment & Appeals) Rules 1994.
This Court has heard the learned Counsel for the parties. Learned Counsel for the Respondents has not disputed that Rule 25B (iii) of Delhi Police (Punishment & Appeals) Rules 1994 was struck down by a division bench of this High Court as ultra vires which order has become final. The impugned order dated 06th February, 1996 was passed by the Appellate Authority in exercise of its power of review under Rule 25B (iii) of Delhi Police (Punishment & Appeals) Rules 1994. Since that rule has been held to be ultra virus, the order dated 06th February, 1996 passed in exercise of the powers conferred under the said rule for the removal of the Petitioner from the service cannot be sustained. Thus, the order of removal dated 06th February, 1996 is liable to be set aside in the facts and circumstances.
Since the order of removal dated 06th February, 1996 is liable to be set aside, the Petitioner will be entitled for re-instatement and all the increments and promotions in accordance with the law till the date of his as, the learned Counsel for the Petitioner has pointed out that the Petitioner has already reached the age of superannuation.
In the circumstances, the point for consideration is whether the Petitioner shall be entitled for back wages or not. The learned Counsel for the Respondents contends that considering the rules of "No Work No Pay", the Petitioner shall not be entitled for back wages especially in view of the penalty awarded to the Petitioner by the Disciplinary Authority of withholding one increment on temporary basis.
An application being CM No. 1475/2010 has also been filed by the Petitioner contending that he is ready to forego the back wages provided, the Respondents are ready to put a quietus to any further litigation by re-instating the Petitioner. Pursuant to the application by the Petitioner, no statement was given on behalf of the Respondents agreeing to his proposal, rather a reply dated 26th February, 2010 was filed, contending inter-alia, that vide Circular No. 21038-21108/CR-I(PHQ)dated 28.05.2001, it was directed that pursuant to the decision of striking down Rule 25B (iii) of Delhi Police (Punishment & Appeals) Rules 1994, the Rule 25A pertaining to revision also has no legal force. The relevant circular is as under:
On receipt of C.A.T.''s judgment dated 14.09.2000, with L.A to C.P. Delhi and it was decided that Rule 25-A "Revision" has also no legal force, in view of C.A.T''s decision dated 14.9.2000. Hence, no revision petition can lie to the Commissioner of Police, Delhi. Since, the Commissioner of Police, Delhi has no longer reversionary powers, the Petitioners in future will be at liberty to move the court after having his/her first appeal considered and rejected by the appellate authority against the order of disciplinary authority. So far as appeals to the C.P. Delhi against the punishment orders of Addl. Cs.P./ Jt. Cs.P./ Spl. Cs.P., are concerned, the same will continue to be entertained in PHQ as per the existing Rule 23 of Delhi Police (Punishment & Appeal) Rules, 1980.
The learned Counsel for the Respondents further contended that consequent to the said circular, the appeal of the Petitioner against the order dated 18th May, 1995 and show cause notice dated 26th October, 1995 challenging the order passed by the Disciplinary Authority is to be decided in accordance with law. The learned Counsel for the Respondents also contended that in view of the above noted circular, no further concession is to be given by the Respondents.
The circular relied on by the Respondents is about Rule 25A of Delhi Police (Punishment & Appeals) Rules 1994. The case of the Petitioner pertains to Rule 25B (iii) of Delhi Police (Punishment & Appeals) Rules 1994.
The learned Counsel for the Petitioner, on instructions, states that the appeal filed by the Petitioner against the imposition of penalty by the Disciplinary Authority would also be not pressed. If the appeal of the Petitioner is not pressed before the Appellate Authority, then nothing further will survive in case of the Petitioner as in terms of the above noted circular, no revision petition would lie to the Commissioner of Police Delhi, nor power conferred under those provision could be exercised enhancing the punishment to removal from service against the order of the punishment of stoppage of one increment on temporary basis by the disciplinary authority.
Since the learned Counsel, on instructions, has contended that the Petitioner would also not challenge the order of the Disciplinary Authority dated 18th May, 1995 awarding punishment of withholding of one annual increment on temporary basis and treating the suspension period from 26th August, 1993 to 28th April, 1995 as not spent on duty and, has also fairly conceded to forgo the back wages, the Petitioner shall be entitled for reinstatement when he was removed from service till the age of his superannuation.
In view of the above discussion, in conformity with the judgment passed by this Hon''ble Court in Head Constable Rajpal Singh (supra) and Ex- Constable Brij Bhushan (supra), we find Rule 25 (B) (iii) of Delhi Police (Punishment & Appeal) Rules as ultra vires If the rule under which the penalty of removal from service has been held to be ultra vires, the punishment for removal from service against the Petitioner cannot be sustained and the punishment of removal from service is liable to be struck down. Thus being struck down as ultra vires, the exercise of powers of review by the Appellate Authority in enhancing the punishment and dismissing the Petitioner from services is erroneous.
For the foregoing reasons, the impugned order dated 06th February, 1996 passed by the Appellate Authority removing the Petitioner from the service is set aside and the Petitioner is re-instated in service from 06th February, 1996. The Petitioner shall be entitled for all the increments and promotions in accordance with the law till date of his superannuation. However, the Petitioner shall not be entitled for any back wages as have been given up by the learned Counsel for the Petitioner on instruction from the Petitioner. The Petitioner shall also be entitled for all his pensioner and retrial benefits due to the Petitioner which be computed forthwith and the pension and other retrial benefits be paid to the Petitioner within three months. With these directions, the writ petition is allowed. The parties are, however, left to bear their own costs.