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CASE NO.: Appeal (civil)  7212 of 2005

PETITIONER: Vijay Singh

RESPONDENT: Union of India & Ors

DATE OF JUDGMENT: 23/02/2007

BENCH: H.K. SEMA &  B.SUDERSHAN REDDY

JUDGMENT: J U D G M E N T

H.K.SEMA,J.

                        The appellant was head constable in Delhi Police.   He was served with the charge, substance of which reads:-

"On 29.3.95 a case FIR No.236/95 u/s 325/34  IPC PS Sultanpuri was registered by HC Vijay  Singh No.310/NW after the receipt of MLC  report of Sh. Nand Kishore.  In the FIR, the HC  showed the name of Sh. Ram Raj as an  accused including the other persons. The HC  also mentioned that he recorded the statement  of Sh. Nand Kishore on 4.3.95. On scrutiny it  was found that there was overwriting in DD  No.10, dated 4.3.95 which was written by the  HC on 4.3.95 and is very much visible.  As per  procedure HC Vijay Singh, was supposed to  enter the statement of Sh. Nand Kishore in the  daily diary on the same day to avoid doubt,  but the HC failed to do so and did not follow  the procedure and also made some over  writing in daily diary with ulterior motive."

                                Admittedly, the charge was framed after a  preliminary enquiry was conducted by PW-4 Sh.Bhairo Singh,  ACP Kamla Market, Delhi.  An enquiry was conducted by PW-4  and its report was submitted to DCP/North-West Distt.Delhi  on 21.8.95 which was marked as Exhibit PW-4/A.                  Many grounds have been urged before us.  The  principle contention of Mr. Krishnamani, learned senior  counsel is, however, rested on the question of violation of Rule  15(2) of the Delhi Police (Punishment and Appeal) Rules, 1980  ( in short ’the Rules’ ).   It is contended by the counsel that  Rule 15(2) mandates that in a case in which a preliminary  enquiry discloses the commission of a cognizable offence,  departmental enquiry shall be ordered after obtaining prior  approval of the Additional Commissioner of Police concerned  as to whether a criminal case should be registered and  investigated or a departmental enquiry should be held.  He  would further contend that in the present case a departmental  enquiry was held preceded by a preliminary enquiry conducted  by PW-4 but no prior approval was obtained from the  Additional Commissioner of Police, therefore, the entire

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enquiry vitiates.    This being the pure question of law, we  have directed the respondent to produce the record as to  whether prior approval of the Additional Commissioner of  Police was obtained or not.  Mr.Dutta, learned ASG fairly  submitted that the record does not disclose that prior approval  of the Additional Commissioner of Police was obtained.  A  supplementary affidavit was, however, filed by one Mr.Ajay  Kumar, Deputy Commissioner of Police, Police Control Room,  Delhi. It is averred in paragraph 2 of the supplementary  affidavit that no preliminary enquiry was ordered, hence the  prior approval of the Additional Commissioner of Police as  required under Rule 15(2) of the Rules for conducting  departmental enquiry was neither required nor the same was  taken.  To say the least, this averment is contrary to the  statement of PW-4.  A preliminary enquiry is a fact finding  enquiry.   Its purpose is (i) to establish the nature of default  and identity of defaulter(s), (ii) to collect prosecution evidence,  (iii) to judge quantum of default and (iv) to bring relevant  documents on record to facilitate a regular departmental  enquiry. In the present case, a preliminary enquiry was  conducted by PW-4 himself and a report was submitted by  him, marked as Exhibit PW-4/A during the enquiry.                               Sub-rule 2 of Rule 15 reads: "In cases in which a preliminary enquiry  discloses the commission of a cognizable  offence by a police officer of subordinate rank  in his official relations with the pubic,  departmental enquiry shall be ordered after  obtaining prior approval of the Additional  Commissioner of Police concerned as to  whether a criminal case should be registered  and investigated or a departmental enquiry  should be held".

A cursory reading of sub-rule 2 would clearly show that the  said Rule is mandatory.  It has to be followed strictly in letter  and spirit.                 To appreciate the present controversy in proper  perspective Rule 15(1) & (2) of the Rules are reproduced:

"15.Preliminary enquiries \026(1) A preliminary  enquiry is a fact finding enquiry.  Its purpose  is (i) to establish the nature of default and  identity of defaulter(s), (ii) to collect  prosecution evidence, (iii) to judge quantum of  default and (iv) to bring relevant documents on  record to facilitate a regular departmental  enquiry.  In cases where specific information  covering the above-mentioned points exists a  Preliminary Enquiry need not be held and  Departmental enquiry may be ordered by the  disciplinary authority straightaway.  In all  other cases, a preliminary enquiry shall  normally precede a departmental enquiry.  

(2) In cases in which a preliminary enquiry  discloses the commission of a cognizable  offence by a police officer of subordinate rank  in his official relations with the pubic,  departmental enquiry shall be ordered after  obtaining prior approval of the Additional  Commissioner of Police concerned as to

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whether a criminal case should be registered  and investigated or a departmental enquiry  should be held".

               (3)\005\005\005\005\005.."

                                A reading of Rule 15(1)&(2) together and the  language employed therein clearly discloses that a preliminary  enquiry is held only in cases of allegation, which is of weak  character and, therefore, a preliminary enquiry is to be held to  establish the nature of default and identity of defaulter; to  collect the prosecution evidence; to judge quantum of default  and to bring relevant documents on record to facilitate a  regular departmental enquiry.  In cases, where specific  information is available, a preliminary enquiry is not  necessary and a departmental enquiry may be ordered by the  disciplinary authority straightaway. It is because of this  reason sub-rule 2 of Rule 15 is couched in such a way as a  defence to the delinquent officer.  The Additional  Commissioner of Police being higher in hierarchy next to DGP,  the requirement of his approval is mandatory, so that the  delinquent officer is not prejudiced or harassed unnecessarily  in a departmental enquiry.  Such approval, if any, must also  be accorded after due application of mind.  It is a case of  violation of mandatory provisions of law.  Therefore, the appeal  must succeed.  The appellant was dismissed by an order dated  21.1.1998 preceded by an enquiry.  The order of dismissal is  set aside.  The appellant shall be re-instated forthwith.  The  orders of the Appellate Authority, the Revisional Authority and  the High Court are set aside.   

               This takes us to consider as to what relief the  appellant is entitled to.  The appellant was dismissed on  21.1.1998 and since then he is out of service till date.  The  appellant would be attaining the age of superannuation on  March 31, 2012.

               Having regards the facts and circumstances of this  case and the nature of misconduct that is alleged to have been  committed by the appellant as a police officer and applying the  principle of ’no work no pay’ he shall not be entitled to back  wages from 21.1.1998 till re-instatement.  Also keeping in view  the nature of misconduct said to have been committed by the  appellant, as a police officer, this order would not preclude the  disciplinary authority to initiate a fresh proceeding from the  stage of obtaining prior approval of the Additional  Commissioner of Police, if so advised.  In the event of the  authority so decide to hold fresh enquiry from the stage of  obtaining prior approval from Additional Commissioner of  Police, they may resort to the principle laid down by this Court  in paragraph 31 in Managing Director, ECIL, Hyderabad &  Ors. v. B. Karunakar & Ors. (1993) 4 SCC 727.  Subject to the  aforestated observation, this appeal is allowed.  No costs.