Smt. Rupa Devi & Ors. vs Govt. Of NCTD & Ors.

Hon’ble Mr. R. N. Singh, Member (J): -

By way of the present O.A., filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant, in paragraph 8 of the OA, has prayed for the following reliefs: -

Pursuant to notice, the respondents have filed counter reply.

We have heard the learned counsels for the parties and with their assistance have gone through the pleadings on record.

Brief facts of the case are that the applicant was appointed as a Constable in Delhi Police in 1998 and rendered about 26 years of service. An FIR No. 507/2003 under Section 302 IPC was registered against him on 14.09.2003 in connection with the death of a truck driver caused by the firing of his service rifle, following which he was placed under suspension w.e.f. 16.09.2003. The applicant was dismissed from service under Article 311(2)(b) of the Constitution, but the said dismissal was set aside by the Tribunal in OA No. 915/2005 with liberty to the respondents to hold a regular departmental enquiry. Accordingly, a departmental enquiry was initiated and completed concluding the charges against the applicant as proved, but the DE was kept in abeyance pending the criminal proceedings. The applicant was ultimately convicted by the Learned Sessions Court. The applicant filed a Criminal Appeal No. 158/2010 before the Hon’ble High Court against the verdict of the Sessions Court which was subsequently dismissed as withdrawn on 04.08.2014 since the applicant had undergone the sentence. Thereafter, invoking Rule 11(1) of the Delhi Police (Punishment & Appeal) Rules, 1980 (as amended) (hereinafter referred to as the Rules), the disciplinary authority removed the applicant from service by order dated 05.09.2014, treating the suspension period as not spent on duty. The statutory appeal preferred by the applicant was rejected on 23.03.2015. Hence, the present OA challenging the removal order, the appellate order and the Rule 11(1) of the Rules.

During the pendency of the present OA, the original applicant unfortunately expired on 16.04.2016. Thereafter, his legal heirs have been pursuing the OA after the MA No. 3631/2016 for bringing them on record was allowed on 03.04.2017.

At the outset, learned counsel for the applicant submits that he is not pressing the relief as sought vide paragraph 8 (ii) for quashing and setting aside Rule 11 (1) of the Delhi Police (Punishment & Appeal) Rules, 2011, amended vide notification dated 30.11.2011. Accordingly, such relief stands dismissed as not pressed.

Learned counsel for the applicant contends that the disciplinary and appellate authorities mechanically imposed the penalty of removal without properly considering the nature of the conviction under Section 304-A IPC, which is based on negligence but the applicant has been treated as though he had been convicted under Section 302 IPC. The conviction was for negligence and not for any intentional or premeditated act and the same could not have been treated as heinous offence. It was further contended that the authority failed to apply its mind to the gravity of the offence, his long and unblemished service, his entitlement to pension after qualifying service, his family circumstances and medical condition, rendering the punishment grossly disproportionate. It was further contended that Rule 11(1) of the Delhi Police (Punishment & Appeal) Rules, 1980 does not follow the principles of natural justice. The Rule specifically requires the Disciplinary Authority to consider the nature and gravity of the offence and thereafter form an independent opinion as to whether the offence is of such a nature that further retention of the police officer in service is prima facie undesirable. It was further submitted by the learned counsel for the applicant that the applicant has been subjected to hostile discrimination as similarly situated police officials convicted in criminal cases were reinstated with lesser punishment. To support this contention, learned counsel placed reliance upon respondents’ own order dated 28.03.2024, 20.05.2024 and 21.08.2025 whereby similarly situated personnel convicted under Section 7 of the Prevention of Corruption Act, 1988 were reinstated in service and the final outcome was made subject to the pending criminal appeal/departmental proceedings.

Learned counsel also relied upon Standing Order No. HRD/12/2022 of Delhi Police. It was submitted that Annexure ‘A’ thereto contains the list of offences regarded by Delhi Police as involving moral turpitude/serious or heinous offences. While the said list expressly includes Sections 302, 304, 304-B, 305, 306, 307 and 308 IPC, Section 304-A IPC is conspicuously absent therefrom. It was argued that the Department’s own classification therefore recognizes a distinction between serious/heinous offences and comparatively minor offences or cases arising from accidents. It was submitted that the authorities failed to consider the medical documents from G.B. Pant Hospital which the applicant placed on record to support his serious medical condition.

9 . On the other hand, learned counsel for the respondents opposed the OA by submitting that the applicant was convicted in a criminal case arising out of the shooting of a truck driver with his service rifle while on duty and that his criminal appeal stood withdrawn, thereby rendering the conviction final. It was contended that, considering the gravity of the misconduct and the adverse impact on the image and discipline of the police force, the disciplinary authority rightly concluded that the applicant's retention in service was wholly undesirable and lawfully exercised powers under Rule 11(1) of the Delhi Police (Punishment & Appeal) Rules, 1980. Learned counsel for the respondents submitted that the disciplinary and appellate orders are reasoned, legal and passed after due application of mind, and that there is no violation of the principles of natural justice. The respondents opposed the claim of the applicant that he is entitled to pensionary benefits as the applicant had been removed from service in view of Rule 11(1) (pre-amended) as well as (amended) of the Delhi Police (Punishment and Appeal) Rules, 1980.

We have considered the submissions made by the learned counsels for the parties and have gone through the pleadings available on record.

It is not in dispute that though the applicant in the aforesaid FIR was charged under Section 302 of IPC, however, the Learned Trial Court had convicted him under Section 304A of IPC. This would also be evident from the last paragraph of the order/judgment dated 17.11.2009 of the Learned Trial Court which reads as under:

While awarding the sentence, the learned Trial Court vide its order dated 17.11.2009 had recorded that the applicant remained in custody for one year three months and three days and the Learned Trial Court sentenced him to undergo rigorous imprisonment for one year three months and three days and directed him to pay a fine of Rs. 10,000/- and in case of default of payment of fine, directed him to undergo simple imprisonment for six months. The criminal appeal being CRL.A.158/2010 filed by the applicant before the Hon’ble High Court of Delhi against the order/judgment of the Learned Trial Court was got dismissed as withdrawn vide order dated 04.08.2014 keeping in view the fact that the applicant has already served out the sentence. The maximum punishment for commission of offence under Section 304A IPC is two years and the offence is bailable. The death was caused by negligence which clearly indicates there being no ulterior motive or mens rea on the part of the applicant/convict.

The Standing Order No. HRD/12/2022 on the subject ‘POLICY FOR DECIDING CASES OF PROVISIONALLY SELECTED CANDIDATES IN DELHI POLICE, WHO HAVE DISCLOSED THEIR INVOLVEMENT IN CRIMINAL CASES/ACQUITTAL/DISCHARGE ETC. OR CONCEALED THE SAME WHILE FURNISHING INFORMATION IN ATTESTATION FORM FOR THE PURPOSE OF VERIFICATION OF CHARACTER & ANTECEDENTS’, paragraph 3(F) defines and provides the details of criminal cases which involve moral turpitude, serious/heinous and gender crime and the Annexure ‘A’ referred to under such paragraph does not include Section 304A IPC. The Disciplinary Authority vide impugned order dated 05.09.2014 (Annexure A-1) has, after recording the incident of the aforesaid FIR, investigation made therein, arrest of the applicant in such case FIR, conviction and sentence by the Learned Trial Court, initiation of disciplinary inquiry against the applicant, the criminal appeal under reference being dismissed as withdrawn, reproducing the provisions of pre-amended Rule 11 of the Rules has reproduced the amended Rule and has inflicted the impugned penalty of removal from service as under:

From the aforesaid impugned disciplinary order, it is evident that the Disciplinary Authority has inflicted the penalty of removal from service taking into account the gravity of the offence committed by the applicant in the said case FIR however, the respondents in their Standing Order No. HRD/12/2022 (supra) have not held the offence committed under Section 304A IPC as a case involving moral turpitude, serious/heinous and gender crime. Thus, the impugned order of removal of applicant from service by the Disciplinary Authority is perverse on facts and also in law.

On perusal of the impugned appellate order dated 23.03.2015, it is evident that in his statutory appeal, the applicant has raised various grounds which the Appellate Authority has also precisely recorded in the impugned appellate order. Though, the Appellate Authority after recording the precise grounds raised by the applicant in his appeal has recorded that he has gone through the appeal and material available on record, however, without dealing with the grounds raised by the applicant, merely quoting the conviction of the applicant in the said case FIR under Section 302 IPC and dismissal of the criminal appeal filed by the applicant, has confirmed the penalty inflicted by the Disciplinary Authority as would be evident from the relevant paragraphs of the impugned Appellate Order dated 23.03.2015 which are reproduced as under:

It is an admitted fact that the applicant has specifically submitted in his appeal that one ASI Khilari Meena and HC Govind Sharma were dismissed from service on the ground of their conviction by the Learned Trial Court under Prevention of Corruption Act, 1988 however, they were reinstated on humanitarian ground. In this regard, learned counsel for the applicant has also invited our attention to an order dated 05.11.2012 in respect of one ASI Umar Mohammad No. 2764/SD and Ex. Ct. Salam Mohd. No. 2500/SD whose dismissal was on the ground of their being convicted under Section 7 of the Prevention of Corruption Act, 1988 read with Section 120-B IPC and punishment of rigorous imprisonment for a period of two and half years that is more than what was ordered against the applicant and a fine of Rs. 5,000/- each for offence punishable under section 13(2) read with Section 13(1) (d) of Prevention of Corruption Act, 1988 and Section 120-B IPC.

It is not in dispute that offence under Prevention of Corruption Act, 1988 falls under the category of moral turpitude. From the aforesaid, it also appears that though the Appellate Authority has precisely recorded the grounds raised by the applicant however, he has not dealt with any of the grounds and has upheld the order passed by the Disciplinary Authority. Such action and order of the Appellate Authority is found to be result of non application of mind and done in a mechanical manner. The same is also in violation of the law laid down by the Hon’ble Apex Court in Mahavir Prasad vs. State of UP reported in AIR 1970 SC 1302 and A.K. Kraipak & Ors. Etc. vs Union of India & Ors. reported in AIR 1970 SC 150.

The action of the respondents in removing the applicant from service vide impugned orders is also found to be arbitrary and discriminatory. It is further noted that the penalty imposed upon the applicant for the offence of something done on account of negligence is shocking and disproportionate.

In the light of the above, the impugned orders are found to be not sustainable in law. Thus, the OA deserves to be allowed and the same is accordingly allowed with the following orders:

However, in the facts and circumstances of the case, there shall be no order as to costs.