AI Structured Summary
Not yet generated for this judgment
Judgment
Sanjay Kishan Kaul, J.
CM No. 14093/2009
The petitioner has filed the application for permission to file the order dated 12.11.1998 passed by the Lieutenant Governor of Delhi imposing the penalty of dismissal from service.
The application is allowed.
WP(C) No. 7521/1999
The petitioner was working as Sub-Inspector with the Delhi Police. The Government of NCT of Delhi initiated disciplinary proceedings under Rule 14 of the Central Civil Services (Classification, Control & Appeal) Rules, 1965 (hereinafter referred to as the said Rules) against the petitioner on 16.2.1995 which resulted in the petitioner being held guilty and the imposition of penalty of dismissal from service vide order dated 12.11.1998. The petitioner unsuccessfully challenged the order of disciplinary authority before the Central Administrative Tribunal (for short "CAT") which dismissed the petition vide order dated 3.11.1999. It is this order which is sought to be challenged in the present writ petition under Article 226 of the Constitution of India.
The charge against the petitioner is that while one under-trial Dayal Singh was in the custody of police and under the control of the petitioner, he died because of torture by the petitioner. The body injuries are stated to have been caused to Dayal Singh by the petitioner in police custody. The postmortem report dated 20.9.1996 was relied upon and an FIR was registered u/s 302 of the IPC. The Lieutenant Governor gave sanction for prosecution and proceedings started in the criminal court but the Sessions court vide order dated 17.12.1994 acquitted the petitioner.
The State filed an appeal against the order of acquittal. The development subsequent to filing of the writ petition is that the said criminal appeal, being Crl.A. No. 176/1995, was allowed on 15.1.2010 and the petitioner has been convicted for the offence of culpable homicide not amounting to murder u/s 304 Part I of the IPC. A sentence of imprisonment of 10 years has been imposed upon the petitioner. Learned Counsel for the petitioner states that this order has been challenged before the Supreme Court where the appeal has been admitted and the sentence suspended.
The petitioner was also proceeded against departmentally as stated aforesaid. The grievance of the petitioner both before the CAT and before this Court is that the order dated 16.2.1995 is vitiated because it has not been passed by the Lieutenant Governor nor has the initiation of departmental proceedings been sanctioned by him. The submission in the nutshell is that there has been no delegation of power to any other authority u/s 147 of the Delhi Police Act, 1978.
The CAT has extracted the article of charges issued against the petitioner in para 8 which showed that the chargesheet against the petitioner related to the custodial death of Shri Dayal Singh. The record showed that the proposal to take regular departmental proceedings against the petitioner were in pursuance to the notes signed by the Chief Secretary, Delhi Administration and the Lieutenant Governor vide order dated 27.3.1990 had accorded the sanction u/s 197(3) of the Cr.P.C. The punishment has also been imposed by the Lieutenant Governor who is the competent authority. The question, thus, which arose was whether the absence of approval by the Lieutenant Governor for disciplinary proceedings though the approval was obtained from the Chief Secretary would vitiate the departmental proceedings.
The impugned memorandum initiating disciplinary proceedings was issued on 28.5.1990. The petitioner did not raise any objection to that memorandum and took part in the departmental proceedings. The grievance was raised to impugn the penalty order passed by the Lieutenant Governor. It was, thus, found that the petitioner is deemed to have waived his right of protest against the order issued by the Chief Secretary directing him to take disciplinary action against the petitioner. It has also been found that no prejudice had been caused to the petitioner and there should not be automatic setting aside of the order on this ground. The Tribunal has rightly relied upon the relevant observations of the Supreme Court in the case of State Bank of Patiala and others Vs. S.K. Sharma, that since no prejudice has been shown the procedural provision can be waived. The Supreme Court recently in the case of H.V. Nirmala Vs. Karnataka State Financial Corporation and Others, has held that the charged officers on the principles of estoppel can be prevented from questioning the constitution of the inquiry authority once he has participated in the inquiry without any protest.
We are in agreement with the aforesaid view especially since there has been no case of any lack of reasonable opportunity to the petitioner to present his case and the violation of the procedural provisions contained in Rule 18(1) of the said Rules cannot result in automatic setting aside of the punishment order. Sanction has been given in the present case by the Chief Secretary though not by the Lieutenant Governor who has passed the punishment order as the disciplinary authority. The sanction for initiating the criminal case was also granted by the Lieutenant Governor and who also has passed the penalty order in the present case.
We are also unable to persuade ourselves to accept the request of the petitioner that this writ petition should be kept pending to await the decision of the Supreme Court in the appeal filed against conviction. The scope and ambit of the criminal trial and the disciplinary proceedings are separate though the cause may be the same. In a criminal case the charge must be proved not on preponderance on evidence but beyond reasonable doubt. This norm could not be applicable to a disciplinary proceeding. Not only that, disciplinary proceedings are not based on the judgement of the criminal court but have been separately carried out where evidence has been recorded of witnesses and a conclusion drawn on the basis of the material on record.
The aforesaid being the only two aspects urged before us and keeping in mind the fact that this Court, in any case, does not sit as a court of appeal over the orders of disciplinary authorities and the order not being vitiated on any settled legal principle, we see no reason to exercise jurisdiction under Article 226 of the Constitution of India.
Dismissed.