ORDER
V.K. Bali, J. (Chairman)
1. Delhi Police (Punishment and Appeal) Rules, 1980 (hereinafter to be referred as the Rules of 1980) envisage both preliminary and regular departmental enquiries. A preliminary enquiry is a fact-finding enquiry. Its purpose is to establish the nature of default and identity of defaulter, to collect prosecution evidence, to judge quantum of default, and to bring relevant documents on record to facilitate a regular departmental enquiry. Resort to preliminary enquiry is made when/where specific information covering the points mentioned above does not exist. In other words, if specific information covering above mentioned points exists, a preliminary enquiry need not be held at all and departmental enquiry can be straightway ordered. However, when resort is made to a preliminary enquiry and that discloses commission of a cognizable offence by a police officer of subordinate rank in his official relations with the public, 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. Circumstances in which preliminary enquiry is ordered and if it discloses commission of a cognizable offence by a police officer of subordinate rank in his official relations with the public, the requirement of obtaining prior approval of Additional Commissioner of Police as to whether a criminal case should be registered and investigated, or departmental enquiry should be held, are contained in provisions of Sub-rules (1) and (2) of rule 15 of the Rules of 1980, reproduced below:
(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 proceed 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 public, 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.
It is by now a settled proposition of law that if the preliminary enquiry may disclose commission of a cognizable offence by a police officer of subordinate rank in his official relations with the public, regular departmental enquiry is ordered only after obtaining prior approval of the Additional Commissioner, who alone would opine as to whether a criminal case should be registered and investigated or departmental enquiry should be held. What has, however, been seriously debated in the present case is as to whether the Additional Commissioner while giving his opinion as to whether a criminal case should be registered and investigated or departmental enquiry should be held, either by virtue of provisions of Sub-rule (2) of rule 15 or by judicial precedents, is enjoined to give reasons of preferring one course of action over the other. It is the case of the applicant canvassed through Shri Anil Singal, learned Counsel representing him, that while forming an opinion for initiation of criminal prosecution or departmental enquiry, the Additional Commissioner has to apply his mind and record reasons as to why one course is preferred over the other. If, therefore, departmental enquiry is ordered by him, the reasons shall have to be recorded why the same is being preferred over and above the criminal prosecution and vice versa. Whereas, counsel representing the applicant would seriously contend that even this issue is no more res integra and stands clinched by several judicial precedents of this Tribunal, the Hon’ble Delhi High Court and the Hon’ble Supreme Court, counsel representing the respondents Ms. Renu George, as also Shri A.K.Bhardwaj, Shri Ajesh Luthra and Ms. Raman Oberoi appearing as amicus curiae, join serious issues with the counsel representing the applicant, and contend that the statute would not make any such requirement, and that the precise issue as debated, and as mentioned above, has not been determined by any judicial precedent so far.
2. Brief facts that may require necessary mention at this stage only with a view to determine the controversy as mentioned above, reveal that the applicant Rohtash Singh, sequel to a regular departmental enquiry has been inflicted punishment of forfeiture of three years approved service permanently entailing reduction in his pay, which order passed by the disciplinary has since been confirmed by the appellate authority. He has challenged orders of punishment in the present Application filed by him under Section 19 of the Administrative Tribunals Act, 1985. One of the points pressed in support of the Application is that while the applicant was posted in the office of DCP Traffic, Delhi, a preliminary enquiry was conducted under the supervision of Shri R.K.Jha, ACP/PRG in which number of statements were recorded and thereafter on the basis of the preliminary enquiry report, a departmental enquiry was initiated against him and three other police officials. It is the case of the applicant that the departmental enquiry is vitiated on the ground of violation of rule 15(2) of the Rules of 1980, as preliminary enquiry was conducted against the applicant which disclosed commission of a cognizable offence in official relations with the public, but no prior approval of the Additional Commissioner was obtained before ordering the departmental enquiry as per rule 15(2). The plea as raised now during the course of arguments is not the same as raised in the pleadings. However, inasmuch as, it is a question of law and as such permissibility to raise the same may not depend upon pleadings, we will determine the same. It is pertinent to mention here that in the counter reply filed on behalf of the respondents, even though there is no specific denial with regard to preliminary enquiry having been conducted, it is urged by the learned Counsel representing the respondents that the enquiry as styled by the applicant to be preliminary enquiry was in fact a PRG raid, which would not partake the character of a preliminary enquiry as envisaged under rule 15(2). It is urged that a Full Bench of this Tribunal in the matter of Constable Gyanender v. Government of NCT of Delhi and Ors OA No. 2425/2006 decided on 22.8.2007 has held that PRG raids per se would not be preliminary enquiries contemplated under rule 15(2) of the Rules of 1980, unless ordered by the competent authority. In fact, it is urged by the learned Counsel representing the respondents that the point raised by the applicant would not arise in the facts and circumstances of this case as there was no preliminary enquiry as contemplated in rule 15(2). We would leave this point open for debate before the appropriate Bench before whom the matter may come up after the decision by this Full Bench. Suffice it to say at this stage that inasmuch as, the contention raised by the learned Counsel representing the applicant as noted above, is engaging attention of this Tribunal in number of cases, it would be appropriate to determine the same.
3. Before we may come to the core issue, we may deal with the preliminary objection raised by the learned Counsel representing the applicant, who states that the Division Bench of this Tribunal should not have referred the matter to the larger Bench, as indeed has been done by the reference order dated 31.8.2007, as the judicial precedents are not reconsidered unless a subsequent Bench may believe that it has laid down wrong principles of law by ignoring a provision of law or otherwise not following a direct binding precedent, and the judgments of this Tribunal would not be referred for reconsideration by a subsequent coordinate Bench merely because the subsequent Bench may have arrived at a different conclusion had there not been an earlier judgment, further contends the learned Counsel. For his aforesaid contention, the learned Counsel relied upon the decision of the Hon’ble Supreme Court in Jindal Vijaynagar Steel (JSW Steel Ltd.) v. Jindal Praxair Oxygen Co. Ltd. The contention has to be repelled for variety of reasons. If the Tribunal might come to a conclusion that the contention as raised above was in the context of the plea that prior approval of the Additional Commissioner of Police was never obtained and there was no debate on the precise issue as pressed into service in the present case and there was no discussion thereon, there would be no bar for a coordinate Bench to refer the matter to a larger Bench. It may be recalled that in the present case as well, all that has been pleaded is that no prior approval was obtained from the Additional Commissioner of Police, even though it is a different matter that we have permitted the applicant to raise the issue as canvassed by him, being a pure question of law. If, however, some observations as may support the aplicant’s plea have been made in some judicial precedents, but the same are by ignoring the relevant provisions of law, as per showing of the applicant himself and as per judgment relied upon by him as well, reference to the larger Bench would be absolutely in order. The Hon’ble Supreme Court in S.I. Rooplal and Anr. v. Lt. Governor through Chief Secretary, Delhi and Ors. wherein this Tribunal expressed a dissenting view with the earlier precedent, held thus:
This Court has laid down time and again precedent law must be followed by all concerned; deviation from the same should be only on a procedure known to law. A coordinate Bench of a Court cannot pronounce judgment contrary to declaration of law made by another Bench. It can only refer it to a larger Bench if it disagrees with the earlier pronouncement
We are of the considered view that in the event a Bench may hold a different or contrary opinion to the one expressed by a coordinate Bench, it can only refer it to a larger Bench, and that is what precisely has been done, assuming that the point involved in the case is also involved in Krishan Kumar v. Government of NCT of Delhi and Ors. 2005 (1) ATJ 585.
4. On facts, we, however, mention that when we made reference to the larger Bench, counsel representing the applicant, in support of the proposition advanced by him, cited a decision of this Tribunal in OA No. 3021/2003 decided on 22.9.2004 in the matter of Krishan Kumar (supra). Reliance on the following observations in the decision aforesaid was placed:
Once the law requires a particular thing to be done in a particular manner then it must be strictly adhered to. The Rules specifically require an application of mind by the Additional Commissioner of Police to make a choice as to whether there should be a criminal case registered against a person who is alleged to have committed a cognizable offence in his official relations or he is to hold a departmental inquiry.
While referring to Sub-rule (2) of rule 15 of the Rules of 1980, we observed that the same would not specifically require the Additional Commissioner of Police to record reasons while making a choice. It was also observed that, as advised by then, we were unable to concur with the view taken by the learned Bench in Krishan Kumar (supra). However, while dealing with the issue now, we would take into consideration the judgment of this Tribunal in Krishan Kumar in all its details.
5. While referring to Sub-rule (2) of rule 15 of the Rules of 1980, Shri Anil Singal, learned Counsel representing the applicant, would vehemently contend that departmental enquiry is to be ordered after obtaining prior approval of the Additional Commissioner concerned as to whether a criminal case should be registered and investigated, or departmental enquiry should be held, as is clearly mentioned in Sub-rule (2) of rule 15, and that being so, once the Additional Commissioner is of the opinion to prefer one course over the other, he must record reasons. We do not find that such an intention of the legislature can be gathered from the language of the statute. There is no specific command or mandate in the rule that the Additional Commissioner shall record reasons for preferring one course of action over the other. The same is sought to be spelled by implication, or by necessary intendment. With a view to examine this contention, the provisions of the Act by virtue of which Rules of 1980 came to be framed, relevant provisions of Rules of 1980 and the purpose of preliminary enquiries as envisaged under rule 15 shall have to be considered and examined. It shall also have to be found out as to whether power exercised by the Additional Commissioner of Police as envisaged in rule 15(2) is judicial, quasi judicial or administrative, and further as to what rights, if any, of a delinquent are likely to be violated or he is likely to be prejudiced. In that connection, it shall be relevant to mention that the Rules of 1980 came into being in exercise of powers conferred by Sub-sections (1) and (2) of Section 147 of the Delhi Police Act, 1978 (hereinafter to be referred as the Act of 1978). Sub-section (1) of Section 147 of the Act aforesaid vests with the Administrator power to make rules for carrying out the purposes of the Act. By virtue of provisions contained in Sub-section (2) the rules may be made for the following matters in particular, and without prejudice to the generality of the power mentioned in Sub-section (1):
(a) recruitment to, and the pay, allowances and all other conditions of service of the members of, the Delhi police under Clause (b) of Section 5;
(b) the manner of publication, under Sub-section (2) of Section 17, by the Commissioner of Police, of the names of special police officers appointed under that section;
(c) awarding of any of the punishments referred to in Sub-section (1) or Sub-section (2) of Section 21 to any police officer of subordinate rank;
(d) procedure for awarding punishments under Section 22;
(e) form of Discharge Certificate under Sub-section (8) of Section 25;
(f) determination of the cost of employing additional police under Sub-section (2) of Section 38;
(g) manner of taking measurements and photographs under Section 55 of a person against whom an order has been made under Section 46, Section 47 or Section 48;
(h) manner of constituting Defence Societies under Sub-section (1) of Section 58;
(i) form of receipt to be given in respect of any article detained under Section 62;
(j) the authority to whose satisfaction claims are to be established under Sub-section (2) of Section 69 and the form and manner in which claims may be made under that sub-section, the procedure for dealing with such claims and all other matters connected therewith under Sub-section (3) of that section;
(k) payment to any police officer or division among two or more police officers the whole or any portion of any reward, forfeiture or penalty, under the proviso to Section 132;
(l) any other matter which has to be, or may be, prescribed, or provided for by rules, under this Act.
Clause (c) of Sub-section (2) of Section 147 deals with awarding of punishments referred to in Sub-sections (1) and (2) of Section 21 to any police officer of subordinate rank. It is under this provision, it appears, the Rules of 1980 have been framed. Provisions contained in Section 21 of the Act of 1978 vest the Commissioner of Police, Additional Commissioner of Police, Deputy Commissioner of Police, Additional Deputy Commissioner of Police, Principal of the Police Training College or of the Police Training School or any other officer of equivalent rank, with the power to award to any police officer of subordinate rank any of the punishments mentioned therein. Sub-section (3) of Section 21, which has a great deal of bearing on the controversy in issue, reads thus:
(3) Nothing in Sub-section (1) or Sub-section (2) shall affect any police officer’s liability for prosecution and punishment for any offence committed by him.
Section 21 of the Act of 1978 is to be read with rules 4(iv) and 6 of the Rules of 1980, which, for ready reference, are reproduced below:
4. Definitions
(i) Authorised punishment shall mean punishment or penalties as prescribed in Section 21 of the Delhi Police Act.
(ii) xxx xxx xxx xxx
(iii) xxx xxx xxx xxx
(iv) Disciplinary Authority means the authority competent to award punishment as prescribed in the Delhi Police Act, 1978.
6. Classification of punishment and authorities competent to award them
(i) xxx xxx xxx xxx
(ii) xxx xxx xxx xxx
Authority competent to Rank to whom award it can be awarded
(i) Deputy Commissioner of Inspector and below Police and above
(ii) Assistant Commissioner Constable to of Police Sub-Inspector.
From the above, it is clear that punishment to the officers of the rank of Inspector and below can be awarded by Deputy Commissioner of Police and above, meaning thereby that the Deputy Commissioner is the disciplinary authority for all the officers of the rank of Inspector and below. The Rules of 1980 apply to all the officers of the subordinate rank, i.e., from Constable to Inspector, as per rule 3 thereof. As per general law and specific provision contained in Sub-section (3) of Section 21, it is thus clear, and we may mention, has not been disputed during the course of arguments, that if prosecution is ordered, departmental enquiry is not barred. The converse of that is also true. It is thus clear that a police officer covered under the Act and Rules can be prosecuted and departmentally tried simultaneously. It is a matter of common knowledge that in number of cases, if the police officer might have committed a cognizable offence in his official relations with the public, he is prosecuted and departmentally tried as well; it is a different matter, however, that some times departmental proceedings are kept in abeyance awaiting the decision of the criminal case, if it be a complicated case on facts and law. The purpose of rule 15, in our view, shall have to be found out keeping in view the undisputed position that a delinquent whose case may be covered under rule 15(2) can be prosecuted and departmentally tried simultaneously. A preliminary enquiry, as referred to above, is resorted to only when in view of the nature of allegations and other attendant circumstances, the default and identity of defaulter is not clear. In that context, it may become necessary to collect prosecution evidence, to judge quantum of default and to bring relevant documents on record. All this is done simply to facilitate the departmental enquiry. Put in other words, preliminary enquiry is resorted to when it may prima facie appear that the concerned police officer has indulged in misconduct, which, if proved, may amount to a cognizable offence in his official relations with the public. Surely, if the allegations and attendant circumstances may be such that there is no need to collect or ascertain the points mentioned in Sub-rule (1) of rule 15, resort to regular departmental enquiry can be made in the first instance. There is no need at all in such an event to resort to preliminary enquiry. Once the purpose of preliminary enquiry is as mentioned above, would the decision of the Additional Commissioner of Police be judicial, quasi judicial or administrative in nature? Inter-linked with the question aforesaid would be as to whether when one course is preferred over the other, would any right of a delinquent be violated or would he be prejudiced in any manner? Inasmuch as answer to first question framed above is dependent upon the second question, it would be more appropriate to take the exercise of finding the answer to the second question first.
6. Having given our thoughtful consideration, we are of the firm view that when the purpose of the preliminary enquiry is only to ascertain the points detailed above and when under the provisions of Section 21 of the Act of 1978 a delinquent can be prosecuted and departmentally tried simultaneously, no right of a delinquent is involved and, therefore, there is no question that he would be prejudiced in any manner whatsoever, whether the Additional Commissioner may choose to decide the criminal prosecution or departmental enquiry against him. There is no judicial precedent with regard to right of a delinquent that may emanate from provisions contained in rule 15(2), perhaps for the reason that the argument as raised before us was never debated earlier. There are some relevant observations, however, made by the Hon’ble Supreme Court in Appeal (Civil) No. 7212 of 2005 decided on 23.2.2007 in the matter of Vijay Singh v. Union of India and Ors. to which we may immediately advert, but we may mention that no contention in that case had been raised as has been raised in the present case. The Hon’ble Supreme Court in the case aforesaid after reproducing rules 15(1) and (2), observed that a preliminary enquiry is held only in case of allegation which is of weak character and, therefore, its purpose is to establish the points mentioned above, and that in cases where specific information is available, preliminary enquiry is not necessary and departmental enquiry may be ordered by the disciplinary authority straightway. After so observing, it has been further mentioned that “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”. That Sub-rule (2) of rule 15 is couched in such a way as a defence to the delinquent officer, has been explained in the very next sentence by observing that the Additional Commissioner of Police being next to DGP, which would mean next to the highest police ranking officer in Delhi Police, would give approval for the only purpose or the reason that the delinquent officer is not prejudiced or harassed unnecessarily in the departmental enquiry. The safeguard provided to a delinquent so as not to be harassed is thus taken care of by providing prior approval by the Additional Commissioner of Police. The delinquent, in our view, would have no right to seek for criminal prosecution or departmental enquiry, and if one course may be preferred by the Additional Commissioner over the other, it cannot be said in any manner whatsoever that the delinquent has been prejudiced.
7. It is not in dispute that the Additional Commissioner of Police while exercising powers under rule 15(2) would not be acting as a judicial authority. At one time, it was thought that in absence of any lis or contest between two contending parties, the functions discharged by a statutory authority would be administrative in nature and not quasi judicial, but with the advent of time, statutory authorities were held to be quasi judicial and decisions rendered by them were regarded as quasi judicial where there was contest between two contending parties, and the statutory authority was required to adjudicate upon rights of the parties. The Hon’ble Supreme Court in Indian National Congress (I) v. Institute of Social Welfare and Ors. , after referring to the decision in Cooper v. Wilson (1937) 2 KB 309 held thus:
In view of the aforesaid statement of law, where there are two or more parties contesting each other’s claim and the statutory authority is required to adjudicate the rival claims between the parties, such a statutory authority is required to adjudicate the rival claims between the parties, such a statutory authority was held to be quasi-judicial and decision rendered by it as a quasi-judicial order. Thus, where there is a lis or two contending parties making rival claims and the statutory authority under the statutory provision is required to decide such a dispute, in the absence of any other attributes of a quasi-judicial authority, such a statutory authority is quasi-judicial authority.
The attributes of quasi judicial authority have on date been further made applicable where there is no lis or two contending parties before a statutory authority, and yet the decision rendered by it is a quasi judicial decision when such authority is required to act judicially. In R. v. Dublin Corporation (1924) 1 KB 171 it was stated by Atkin, L.J., that “when any body of persons has legal authority to determine questions affecting the rights of subjects and having the duty to act judicially, such body of persons is a quasi-judicial body and decision given by them is a quasi-judicial decision”. The Hon’ble Supreme Court while referring to the decision of Atkin, L.J., observed thus:
In a nutshell, what was held in the aforesaid decision was, where a statutory authority is empowered to take a decision which affects the rights of persons and such an authority is under the relevant law required to make an enquiry and hear the parties, such authority is quasi-judicial and decision rendered by it is a quasi-judicial act.
In the same very judgment, the Hon’ble Supreme Court after referring to the decision in Province of Bombay v. Khushaldas S. Advani held as follows:
24. The legal principles laying down when an act of a statutory authority would be a quasi-judicial act, which emerge from the aforesaid decisions are these:
where (a) a statutory authority empowered under a statute to do any act (b) which would prejudicially affect the subject (c) although there is no lis or two contending parties and the contest is between the authority and the subject and (d) the statutory authority is required to act judicially under the statute, the decision of the said authority is quasi-judicial.
25. Applying the aforesaid principle, we are of the view that the presence of a lis or contest between the contending parties before a statutory authority, in the absence of any other attributes of a quasi-judicial authority is sufficient to hold that such a statutory authority is quasi-judicial authority. However, in the absence of a lis before a statutory authority, the authority would be quasi-judicial authority if it is required to act judicially.
8. In view of authoritative pronouncement of the Hon’ble Supreme Court in Indian National Congress (I) (supra), it can well be said that the Additional Commissioner of Police would not be a quasi judicial authority. The Additional Commissioner of Police may be a statutory authority empowered under the statute to give prior approval with regard to criminal prosecution or departmental enquiry, but, as mentioned above, the said decision cannot prejudicially affect a delinquent. There is no requirement under rule 15(2) for the Additional Commissioner to act judicially as well. We are conscious that even administrative orders also some times are required to be speaking containing reasons, but it is too well settled by now that the requirement of passing reasoned or speaking order would be when a right of a party is affected. The sine qua non, in our considered view, of passing speaking and reasoned order is when right of a party is likely to be adversely affected, be it judicial, quasi judicial or administrative.
9. In view of discussion and conclusion arrived at by us, perhaps, there would have no need to further delve on the issue but, as mentioned above, learned Counsel representing the applicant vehemently contends that the issue is not res integra and has since been clinched by judicial decisions. There is serious contest to this submission of learned Counsel and thus it becomes necessary to refer to all judicial decisions that have been cited and relied upon by learned Counsel. Mr. Anil Singal has placed reliance upon the judgment of Hon’ble Supreme Court in the matter of Vijay Singh v. Union of India (supra). The facts of the case aforesaid reveal that before framing the charge against Vijay Singh, Head Constable in Delhi Police, preliminary enquiry was conducted by Shri Bhairo Singh, ACP. In enquiry conducted by him report was submitted to DCP/North-West Distt., Delhi on 21.8.1995, exhibited PW-4/A. Pursuant to regular departmental enquiry, Vijay Singh, Head Constable was dismissed from service. Principle contention, that was raised while calling in question the order of dismissal, was violation of rule 15 (2) of the Rules of 1980. It was urged 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. It was further urged that departmental enquiry was preceded by preliminary enquiry conducted by PW-4 but no prior approval was obtained from the Additional Commissioner of Police and, therefore, the entire enquiry was vitiated. No question, as to when permission is obtained, the Additional Commissioner of Police shall have to record reasons for preferring one course of action over the other, was ever raised. The contention of learned Counsel to the extent, as mentioned above, was accepted by observing thus:
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 law declared by Hon’ble Supreme Court by virtue of provisions contained in Article 141 of the Constitution of India is binding on all courts in the territory of India, but there has to be declaration of law by Supreme Court which is arrived at on a particular point that arises and there is a debate on the same. The point as canvassed before us was not even involved in the case aforesaid nor there was any debate on the same. The observations made by Hon’ble Supreme Court “Such approval, if any, must also be accorded after due application of mind” cannot be stretched to mean that reasons have to be recorded for preferring one course of action over the other. Naturally, when statute enjoins a decision to be taken by the concerned authority, the same has to be arrived at after application of mind and, therefore, all that can be urged is that when Additional Commissioner of Police accords approval, he must apply his mind to the facts of the case and then arrive at a conclusion. The next reliance placed by learned Counsel is upon the Division Bench judgment of Hon’ble Delhi High Court in the matter of Deputy Commissioner of Police v. Ravinder Singh in Writ Petition (C) No. 2963/2005 decided on 23.3.2005. This Tribunal in OA No. 1125/2004 had quashed the order of dismissal from service issued to Ravinder Singh pursuant to departmental enquiry. One of the grounds invalidating the order of dismissal was that even though preliminary enquiry preceded a regular departmental enquiry but no prior approval of the Additional Commissioner of Police in terms of rule 15 (2) of the Rules of 1980 was taken. The view expressed by this Tribunal, as mentioned above, was assailed on the basis of decision of Hon’ble Supreme Court in the matter of State of Punjab v. Charan Singh, . The contention aforesaid was repelled on the basis of earlier decision of the same High Court in the matter of Commission of Police and Ors. v. R.C. Shekhran in Civil Writ No. 1553/2003 decided on 30.4.2005 wherein it was held that the decision taken by the Tribunal that the case papers were required to be placed before the Additional Commissioner of Police in terms of rule 15 (2) of the Rules of 1980 and that he should have applied his mind to the question whether the respondent should be proceeded against departmentally or in a criminal court was legal and valid and further that if the intention, which is contained in rule 15 (2), is not complied with and proper approval is not obtained then decision of the concerned authority would be vitiated. The decision cited by learned Counsel representing the writ petitioners was held not applicable in the facts and circumstances of the case as the said view as was expressed with regard to rule was not similar to the provisions contained in rule 15 (2) of the Rules of 1980. There cannot be and indeed there is no dispute to the proposition of law that if preliminary enquiry is held, prior approval of Additional Commissioner of Police as to whether departmental enquiry should be held or criminal prosecution should be ordered has to be obtained, but it is not mandatory that for preferring one course of action over the other, the reasons have to be recorded. We need not refer to the decision of the same High Court in Commissioner of Police and Ors. v. R.C. Shekhran (supra), as observations made therein have already been referred to while dealing with the case of Deputy Commissioner of Police v. Ravinder Singh (supra). The next reliance on judicial precedent by learned Counsel representing the applicant is to the decision of this Tribunal in OA No. 2385/2006 decided on 26.07.2007 in the matter of Antony Methew v. Government of NCT of Delhi and Ors. which was presided over and authored by one of us (Justice V.K. Bali, Chairman). The facts of the case insofar as the same are relevant reveal that on the basis of complaint lodged by Mrs. Sophy, a preliminary enquiry was conducted by ACP, PG Cell of Central District, New Delhi. It was the case of the applicant therein that in the preliminary enquiry, ACP had examined Mrs.Sophy, her husband, Mrs. Aji Roy, Mr. Sri Kumar and Mrs. Kamalakshy and recorded their statements. It was the case of the applicant that the enquiry conducted by ACP was not found favourable to the department and was concealed from the applicant. Yet another preliminary enquiry was conducted by the Vigilance Branch of Police Headquarters, Delhi on the basis of the same facts and circumstances. The Vigilance Branch in its preliminary enquiry again examined Mrs. Sophy, her husband, Mrs. Aji Roy, Mr. Sri Kumar and Mrs. Kamalakshy. The Joint Commissioner of Police/Armed Police, Delhi thereafter initiated the departmental enquiry by order dated 23.8.2004. Enquiry officer submitted his report on 5.6.2005 holding the applicant guilty of the charge framed against him. The disciplinary authority, while accepting the report of enquiry officer, inflicted punishment upon the applicant, as mentioned above, which order was confirmed in appeal. One of the contentions that was raised by learned Counsel representing the applicant was that the order initiating departmental action by Joint Commissioner of Police/Armed Police, Delhi on 23.8.2004 had disclosed commission of a cognizable offence in relation to public and, as such, the Joint Commissioner of Police was duty bound to record good and valid reasons why a departmental action should be preferred then to launch criminal proceedings. It was further urged that Joint Commissioner of Police failed to record any good and valid reason and did not apply his mind to the mandatory provisions of rule 15(2) of the Rules of 1980 and, as such, the enquiry was vitiated. According to learned Counsel for the applicant, this Tribunal upheld the contention aforesaid in paragraph 8 of the judgment which reads as follows:
It is the case of the applicant that the order initiating departmental action by the Joint Commissioner of Police/Armed Police, Delhi dated 23.8.2004 discloses commission of a cognizable offence in relation to public, and that being so, the Joint Commissioner had necessarily to record reasons so as to prefer departmental action than criminal proceedings, and further that no reasons were recorded, thus violating the provisions of Rule 15 (2) of the 1980 Rules. The applicant has set up the plea as mentioned above in para 5(h) of the Application. In the corresponding para in the written statement, all that has been mentioned is that the contents of para 5(h) are wrong and denied and there is no violation of provisions of Rule 15(2). There is no specific denial that allegations made against the applicant would disclose commission of a cognizable offence, and that the concerned authority had not applied its mind while passing the order so as to give precedence to departmental proceedings rather than launching criminal prosecution against the applicant.
Learned Counsel does not appear to be right in contending that extracted portion of the judgment above is the finding or observation of this Tribunal. In our considered view, it is only the contention of learned Counsel that finds mention in the part of the judgment relied upon by him. This Tribunal dealt with the issue or contention of learned Counsel, as noted above, in paragraph 9, after reproducing rules 15(1) and (2) of the Rules of 1980, it has been observed thus:
A perusal of Sub-rules (1) and (2) as reproduced above would clearly indicate that preliminary enquiry is normally held to establish the nature of default and identity of defaulter, to collect prosecution evidence and to judge the quantum of default. When, however, the allegations may be of grave nature, there is no bar for the department to order regular departmental enquiry in the first instance or straightway. Once, preliminary enquiry is held and the said enquiry discloses commission of a cognizable offence by a police officer, which may be in his official relations with the public, regular departmental enquiry is ordered only after obtaining the prior approval of the Additional Commissioner of Police, who alone would opine as to whether a criminal case should be registered or a departmental enquiry should be held. In a recent decision in Vijay Singh v. Union of India and Ors. the Hon’ble Supreme Court while dealing with the precise contention under the very Rule 15(1) and (2) observed as follows:
We simply held that once preliminary enquiry is held and the same discloses commission of a cognizable offence by a police officer, which may be in his official relations with the public, regular departmental enquiry is ordered only after obtaining the prior approval of the Additional Commissioner of Police, who alone would opine as to whether a criminal case should be registered or a departmental enquiry should be held. There is no finding or observation made by us that for preferring one course of action over the other, the reasons have to be recorded. What we held in the judgment aforesaid has since been repeatedly held by this Tribunal as also by the Hon’ble Supreme Court in the matter of Vijay Singh v. Union of India and Ors. (supra) which judgment we followed. The contention of learned Counsel may be that for preferring one course of action over the other, reasons have to be recorded, and we also may have observed that the contention raised by learned Counsel has merit, but the same cannot be taken to have been accepted in its entirety. We have already mentioned to the extent to which the contention of learned Counsel was accepted. Be that as it may, if some observations made by us may appear to be in tune with the contention raised by learned Counsel of the applicant, it is no judicial heroism to adhere to the same, even if the same may be shown as not warranted under the law. The next judicial precedent relied upon by counsel for the applicant is of this Tribunal being OA No. 95/2006 decided on 06.03.2007 in the matter of Naresh Kumar v. Commission of Police and Ors. Violation of Rule 15(2) was one of the points taken in the case aforesaid. The Tribunal referred to the judgment of Hon’ble Supreme Court in Vijay Singh v. Union of India (supra) so pressed during the course of arguments by learned Counsel for applicant and then reproduced rules 15(1) and (2) and observations made by Supreme Court. In para 6, once again, the Hon’ble Bench noted the contention of learned Counsel which reads as follows:
In the above backdrop learned Counsel would contend that compliance of Rule 15 (2) when mandatory is to be followed strictly in its letter and spirit and as the provision is couched in a way as a defence to the delinquent official. Joint Commissioner of Police on accord of approval in a PE when approves holding of enquiry, before hand it is mandatory upon him to explore the possibility of registering a criminal case and if it is otherwise, record reasons therefor.
The Hon’ble Bench then noted the reliance of learned Counsel placed upon the judgment of this Tribunal in the matter of Krishan Kumar v. Govt. of NCT of Delhi and Ors. 2005 (1) ATJ 147, and decision of the Hon’ble Delhi High Court in the matter of Union of India v. Ravi Dutt 1973 (1) SLR 1222 (P&H). The Bench then referred to the contentions raised by learned Counsel defending the respondents and held as follows:
It is trite that when a provision in the Rules is enacted it has some utility. It will not be otiose or redundant, as legislature or on delegated powers administrative authorities do not commit any mistake. Accordingly, Rule 15 (2) of the Rules ibid obligates the Joint Commissioner of Police to accord his approval on the basis of PE as to whether a criminal case should be registered or investigated or DE should be held. The aforesaid connotes that the Additional Commissioner of Police is not absolved from not recording reasons as to registration of a case, as the things which are to be done in a particular manner by the public functionary or even by the quasi-judicial authority are to be done in the manner prescribed and no deviation or other method should be adopted. The contention put-forth by the learned Counsel of respondents as to approval of the DA on the basis of the report of the PRG and approval to the DE, by necessary implication, discharges the obligation as to registration of a criminal case and investigation thereof is ruled out, cannot be countenanced in law. If between the two options Additional Commissioner of Police has to pick up one, it is incumbent upon him to record reasons and apply its mind as to exclusion of other option. Admittedly, when in the present case allegations constitute alleged cognizable offence against applicant in relation with public and in discharge of official duties the positive part of the rules, rather than a procedural flaw, that there should be application of mind or recording of reasons as to non-registration of a criminal case. From the perusal of the record, we do not find from the PRG report or note submitted to the Joint Commissioner of Police any indication as to possibility of registering a case and investigation thereof.
The Hon’ble Tribunal then referred to the judgment of this Tribunal in OA No. 132/2006 decided on 22.02.2007 in the matter of Taj Pal Singh v. Govt. of NCT of Delhi and Ors. and Vijay Singh’s case (supra) once again, and concluded thus:
What is required is an approval under Rule 15 (2) by the Joint Commissioner is not on his ipsi dixit but on discharge in accordance with rules as an obligation. Accordingly, the contention that decision in Vijay Singh’s case (supra) would not apply, taken by learned Counsel of respondents, cannot be countenanced.
The observations made by the Hon’ble Bench, as referred to above, and in particular, “If between the two options Additional Commissioner of Police has to pick up one, it is incumbent upon him to record reasons and apply its mind as to exclusion of other option.”, do support the contention of learned Counsel but what appears to us is that the findings, as extracted above, came to be recorded on the basis of judgment relied upon by the Hon’ble Bench, as mentioned above, which in turn, in our view, does not go to the extent as that for preferring one course of action over the other, reasons have to be necessarily recorded. The observations, as extracted above, are pre-fixed to the interpretation of rule 15(2). The learned Bench while interpreting rule 15(2) observed that the same obligates the Additional Commissioner of Police to accord approval on the basis of PE as to whether a criminal case should be registered and investigated or DE should be held, and the same would connote that the Additional Commissioner of Police is not absolved from recording reasons as to registration of a case, as the things which are to be done in a particular manner by the public functionary or even by the quasi judicial authority are to be done in the manner prescribed and no deviation or other method should be adopted. With utmost respect to the Hon’ble Bench, we do not find anything in rule 15(2) which may obligate the Additional Commissioner of Police while according approval, to give reasons for preferring one course of action over the other. In our considered view, this is not at all the requirement of rule 15(2). Recording of reasons for taking one course of action may be the requirement of the statute but to record reasons for preferring one course of action over the other is not a mandate contained in rule 15(2).
10. There would be no need to deal with the judgment of this Tribunal in Krishan Kumar v. Government of NCT of Delhi and Ors. 2005 (1) ATJ 585 reference whereof has already been made while dealing with the judgment of this Tribunal in Naresh Kumar (supra). The observations in the said judgment, as already mentioned above, do not go to the extent that Additional Commissioner of Police should give reasons for preferring one course of action over the other. The only contention raised in the case aforesaid was that there was no decision taken if instead in criminal prosecution the applicant should be dealt with departmentally. On facts, it was found that even the office notings did not indicate that it was ever contemplated that a criminal case should be registered against the applicant. There was no application of mind in the case aforesaid.
11. Next reliance of the learned Counsel is on the judgment of the Hon’ble Supreme Court in Consumer Action Group and Anr. v. State of Tamil Nadu and Ors. . Petitioner in the said case had challenged the validity of 62 orders passed by the Government under Section 113 of the Tamil Nadu Town and Country Planning Act, 1971. Section 113 of the Act aforesaid reads as follows:
113. Exemptions. Notwithstanding anything contained in this Act, the Government may, subject to such conditions as they deem fit, by notification, exempt any land or building or class of lands or buildings from all or any of the provisions of this Act or rules or regulations made thereunder.
By way of amendment in 1998, Section 113-A was introduced by which violations could be legitimized under the Act, rules and regulations. The vires of Section 113 were upheld, but while dealing with the contention raised that the orders passed under the said Section should require reasons, it was observed that “Even if the section is silent about recording of reasons, it is obligatory on the Government while passing orders under Section 113 to record the reasons”. It is this observation of the Hon’ble Supreme Court that has been relied upon by the counsel representing the applicant. It is too well settled a proposition of law that observations in a judgment cannot be taken in isolation. The reference and context in which the observations have been made has to be taken into consideration. We may mention that the scheme of the Act aforesaid confers wide ranging powers on the Government. The observations of the Hon’ble Supreme Court in the same very judgment immediately following the observations relied upon by the learned Counsel, read as follows:
The scheme of the Act reveals, the Government is conferred with wide ranging power, including power to appoint all important statutory authorities; appoints Director and its members of Town and Country Planning under Section 4; constitutes Tamil Nadu Town and Country Planning Board under Section 5; Board to perform such functions as Government assigns under Section 6; appoints Madras Metropolitan Development Authority under Section 9-A; Government entrusted for making master plan or any other new plan; any plant or modification is subject to the approval of Government. In fact, every statutory Committee is created by the Government and its planning is subject to the approval by the Government. It is because of this that very wide power is given to it under Section 113. In a given case, where a new development in rural or urban area may be required urgently and provisions under the Act and Rules would take long procedure, it may in exercise of its exemption power exempt some of the provisions of the Act and Rules to achieve the development activity faster or in a given case, if any hardship arises by following or having not followed the procedure as prescribed, the power of exemption could be exercised but each of these cases would be for furtherance of the development of that area.
We have already held that recording of reasons in the order may be necessary where the order may adversely affect a citizen, be it judicial, quasi judicial or even administrative orders. Once, the orders that could be passed under Section 113 of the Act aforesaid would confer rights or take away the same, reasons have to be recorded. That is not the situation in the matter of trying a delinquent departmentally or criminally prosecuting him.
12. From the judicial precedents cited by the learned Counsel representing the parties, the one nearest for the proposition in hand is the judgment of a Division Bench of the Delhi High Court in Ram Pal Singh v. Inspector General of Police, Delhi and Ors. . It may be interesting to note that reliance on this judicial precedent has been placed both by the counsel for the applicant as also the counsel representing the respondents. The facts of the case aforesaid would reveal that on September 21, 1964, Inspector Sardar Singh, while on patrol duty to check smuggling on the Delhi-UP border, found three persons, one of whom was carrying a bag of wheat on a bicycle; on seeing the Inspector, the person ran away leaving the wheat and the bicycle behind; on enquiry, his two companions told the Inspector that wheat had been seized by the petitioner, a constable in Delhi Police force, who was then on anti-smuggling duty, and another constable, from their companion as it was being smuggled and that the same had been sold by the petitioner and the other constable to them. Pursuant to the aforesaid disclosure, the Inspector made enquiries from number of persons including the two constables, both of whom were alleged to have made confession but declined to admit it in writing. The Inspector recorded statements of various persons including that of the constables and made a report on September 22, 1964 setting out the aforesaid facts, the result of his enquiry and the recommendation that the appellant and the other constable were guilty “of serious misconduct” and “severe action may kindly be taken against them”. By his communication of September 25, 1964, the Superintendent of Police, North District, Delhi informed the District Magistrate that a complaint had been received against the appellant and another which indicated the commission of an offence by police officers in connection with their official relations with the public and a direction was sought from the District Magistrate under Sub-rule (1) of rule 16.38 of the Punjab Police Rules if “enquiry be instituted by a police officer or made over to a selected Magistrate 1st Class”. Copy of the aforesaid report of the Inspector was enclosed with the said communication. By his communication of September 29, 1964, the District Magistrate informed the Superintendent of Police that “the allegations contained in the report of ASP/Civil Lines against constables Shamsoon Mashi No. 1258 and Ram Pal Singh No. 817 of Anti Smuggling Staff, Shahdara may please be investigated by a police officer, as required under P.P.R. 16.38 (1)”. The investigation was entrusted to Inspector Sardar Singh, who recorded a note on October 9, 1964 to the effect that the enquiry had been conducted by him against constables Shamsoon Mashi and Ram Pal Singh and detailed report dated 22.9.1964 was submitted by him, and that the same may be considered as his final report and orders may be passed to hold departmental proceedings against both the constables. Pursuant to this, Superintendent of Police informed the District Magistrate by his communication of October 12, 1964 that the enquiry made by the Inspector revealed that the allegations against the two constables were correct and that they had committed offences in their official relation with the public. It was further pointed out that “It is for you to decide under the Punjab Police Rule 16.38(2) whether they may be dealt with Under Section 7 of the Police Act or otherwise”. The District Magistrate was accordingly requested for a direction if the defaulters should be dealt with under Section 7 of the Police Act and “necessary orders with detailed reasons may kindly be sent for further necessary action”. This was followed by communication of October 19, 1964 from the District Magistrate which reads as follows:
I have gone through the enquiry report and the facts revealed justify the initiation of departmental proceedings against constables Shamsoon Mashi No. 1258 and Ram Pal Singh No. 817 permission for which under P.P.R. 16.38 (2) is hereby accorded.
Departmental proceedings thus commenced. The appellant was found guilty of the charge and by order of April 7, 1965 the Superintendent of Police dismissed him from service. The order was upheld in appeal and subsequently in revision. One of the grounds challenging the order of dismissal from service was that initiation of departmental proceedings was not in accordance with P.P.R. 16.38. The aforesaid ground was repelled by the learned Single Judge. Aggrieved, constable Ram Pal Singh filed a Letters Patent Appeal. In support of ground as mentioned above, which was taken before the learned Single Judge, it was urged before the Division Bench that rule 16.38 of the Punjab Police Rules was mandatory; that there was non-compliance of Sub-rule (1) of rule 16.38 inasmuch as information of the commission by the appellant on September 21, 1964 of the offence alleged against him, was not given to the District Magistrate immediately to seek his permission as to the channel of investigation under Sub-rule (1) of rule 16.38 but was transmitted on September 25, 1964 and a preliminary investigation was conducted by Inspector Sardar Singh prior to the direction of the District Magistrate under Sub-rule (1); and that the order of District Magistrate under Sub-rule (2) authorizing initiation of departmental proceedings against the petitioner did not comply with the requirements of the said sub-rule because the District Magistrate neither applied his mind to the matter nor recorded reasons for it. It is the last contention as noted above, which would be relevant for the purpose of determining the controversy in issue. The learned Single Judge on the aforesaid contention held that although the order of the District Magistrate sanctioning departmental proceedings did not by itself indicate the reasons on which it was based, the order, when read alongwith the enquiry report, indicates that there were sufficient reasons for the order because the report makes out “a prima facie case against the petitioner in view of Inspector Sardar Singh’s evidence, but at the same time, the case is not strong enough to succeed by way of a prosecution in a criminal court” The learned Single Judge also observed that “clearly, this is why the District Magistrate ordered a departmental enquiry against the petitioner and there was, therefore, substantial compliance with the provisions of Sub-rule (2) of the Rule.” Rule 16.38 on which rested the contention as mentioned above, reads as follows:
16.38 (1) Immediate information shall be given to the District Magistrate of any complaint received by the Superintendent of Police which indicates the commission by a police officer of a criminal offence in connection with his official relations with the public. The District Magistrate will decide whether the investigation of the complaint shall be conducted by a police officer, or made over to a selected magistrate having 1st class powers.
(2)When the investigation of such a complaint establishes a prima facie case, a judicial prosecution shall normally follow, the matter shall be disposed of departmentally only if the District Magistrate so orders for reasons to be recorded. When it is decided to proceed departmentally the procedure in rule 16.24 shall be followed. An officer found guilty on a charge of the nature referred to in this rule shall ordinarily be dismissed.
The learned Division Bench dealing with the Appeal answered the question as follows:
20. What is worse is the mechanical manner in which the District Magistrate discharged his function under Sub-rule (2) of the Rule. As has been pointed out, Sub-rule (2) clearly enjoins that if a prima facie case has been found as a result of the investigation, the prosecution in a court of law would ordinarily follow but the delinquent officer may instead be tried departmentally “only if the District Magistrate so orders for the reasons to be recorded”. When the result of what may be called investigation was forwarded to the District Magistrate, he had to apply his mind to the material and to decide if there was a case for a departure from the ordinary norm laid down in the sub-rule. If he found that there was a case for the departure, he had to indicate his reasons. Whether the sub-rule was mandatory, as has been held by me above, or merely directory, as has been assumed by the learned Judge, it is obvious that the Rule incorporates an essential safeguard for the delinquent officer when it provides “a judicial prosecution shall normally follow”. This is so because it is well settled that a judicial trial is a more satisfactory form of trial of a person charged with any offence as it affords a better opportunity to the delinquent officer to vindicate his honour as also offers him better chance of an acquittal because of the standard of proof which is insisted upon in a criminal trial. The departure from the ordinary norm constitutes, therefore, an exception which can cause prejudice to the delinquent officer’….’
It is significant to mention that rule 15(2) of the Rules of 1980 is couched in different language than rule 16.38 of the Punjab Police Rules. There is nothing in rule 15(2) that judicial prosecution would normally follow when investigation of the complaint establishes a prima facie case, as is so in rule 16.38 of the Punjab Police Rules. The other significant distinction between the two rules is that there are no words like “if the District Magistrate so orders for reasons to be recorded” in rule 15.2 of the Rules of 1980. The observations/findings of the Division Bench as quoted above are based upon the language employed in rule 16.38 of the Punjab Police Rules. The rule requires judicial prosecution to be normally resorted to, and resort to departmental proceedings is by way of an exception. When there is departure from normal rule, reasons would be required to be given if it may not have been so specifically stated in the rule. However, what really clinches the issue is that for making a departure from judicial prosecution, it has been specifically mentioned in the rule itself that reasons shall have to be recorded. The learned Counsel representing the applicant has, however, placed reliance upon the observations made by the Division Bench that “This is so because it is well settled that a judicial trial is a more satisfactory form of trial of a person charged with any offence as it affords a better opportunity to the delinquent officer to vindicate his honour as also offers him better chance of an acquittal because of the standard of proof which is insisted upon in a criminal trial”. These observations do support the contention raised on behalf of the applicant. The said observations, in our considered view, have been made without there being a contention raised that there is no bar for simultaneously resorting to criminal prosecution and departmental proceedings. There was no provision like Sub-section (3) of Section 21 of the Act of 1978 in the Punjab Police Rules, and in any case, as mentioned above, the plea that both the proceedings could be simultaneously launched was not raised and thus could not be commented upon. It may be recalled that the Rules of 1980 came into being in exercise of powers conferred by Sub-sections (1) and (2) of Section 147 of the Act of 1978. Clause (c) of Sub-section (1) of Section 147 deals with awarding of punishments referred to in Sub-section (1) of Sub-section (2) of Section 21 to any police officer of subordinate rank, and it is under this provision, it appears, the Rules of 1980 have been framed. By virtue of provisions contained in Sub-section (3) of Section 21, nothing in Sub-sections (1) or (2) would affect any police officer’s liability for prosecution and punishment for any offence committed by him. The Rules of 1980 came into being by virtue of Section 147 of the Act of 1978. The Rules which have come into being by virtue of provisions of the Act, have to be read harmoniously, and that being so, it can be said that if the Act permits criminal prosecution and also departmental proceedings simultaneously, rule 15(2) of the Rules of 1980 cannot be read to mean that out of the two choices available to the Additional Commissioner of Police, only one can be resorted to. The observations made by the Hon’ble Division Bench that “judicial trial is a more satisfactory form of trial of a person charged with any offence as it affords a better opportunity to the delinquent officer to vindicate his honour as also offers him better chance of an acquittal because of the standard of proof which is insisted upon in a criminal trial”, have indeed to be accepted, but the same would be relevant only if resort to criminal prosecution is made, and the other choice is foreclosed. It is only a comparison with regard to standard of proof between a criminal trial and departmental proceedings that has been made by the Hon’ble Bench.
13. In State of Punjab v. Charan Singh the Hon’ble Supreme Court had an occasion to examine as to whether provisions contained in rule 16.38 of Punjab Police Rules could override the provisions of the Criminal Procedure Code and the Prevention of Corruption Act. The facts of the case reveal that Charan Singh was convicted by the learned Special Judge, Ludhiana of an offence under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act and sentenced to rigorous imprisonment of one year and to pay fine. On appeal filed by him, the High Court acquitted him on the ground that there was non-compliance with the provisions of rule 16.38 of Punjab Police Rules. In an appeal filed against the judgment aforesaid, the Hon’ble Supreme Court held that the learned Single Judge of the High Court was clearly wrong in acquitting the respondent on the ground that there was non-compliance with the provisions of rule 16.38, and that in Chapter XVI of the Punjab Police Rules dealing with departmental punishments and the procedure to be followed in imposing such punishments, guidance is given as to how police officers guilty of misconduct and criminal offences may be dealt with. While dealing with the relevant rule in Chapter XVI, it was held as follows:
Rule 16.38 lays down the guidelines of the procedure to be followed when a Superintendent of Police receives any complaint about the commission of a criminal offence by a police officer “in connection with his official relations with the public”. The Superintendent of Police is enjoined to give immediate information to the District Magistrate who is thereupon to decide whether the investigation of the complaint shall be conducted by a Police Officer or by a Magistrate. It is stated that though “a judicial prosecution shall normally follow”, the matter may be disposed of departmentally if the District Magistrate so orders, for reasons to be recorded. The further Departmental procedure is prescribed by the remaining clauses. It is clear that Rule 16.38 is not designed to be a condition precedent to the launching of a prosecution in a Criminal Court; it is in the nature of instructions to the Department and is not meant to be of the nature of a sanction or permission for a prosecution. Nor can it override the provisions of the Criminal Procedure Code and the Prevention of Corruption Act.
The Hon’ble Supreme Court approved the observations made by the Division Bench of Punjab and Haryana High Court in Hoshiar Singh v. State (1965) 67 Pun LR 438 reproduced below:
I do not think Rule 16.38 was intended or could have the effect of imposing as a condition precedent to the trial of a police officer in a Court of law, a sanction or an order by the District Magistrate, as contemplated therein. The language appears to me to be confined only to departmental enquiries. The investigation for establishing a prima facie case is merely meant to guide the District Magistrate, uncontrolled by the opinion of the Superintendent of Police, whether or not a departmental proceeding should be initiated against the guilty party, and it is the procedure and the punishment controlling the departmental proceedings alone, which appear to have been prescribed by this rule.
It is now settled by the Hon’ble Supreme Court that even the provisions of rule 16.38 would not foreclose the option of launching criminal prosecution, even though, by virtue of provisions contained in the said rule, departmental proceedings may also be resorted to. If that be so, there is no question of a delinquent being prejudiced if while choosing an option between criminal prosecution and departmental proceedings, resort is made to one. Prior permission of Additional Commissioner of Police is only a subjective satisfaction to choose one course of action simply with a view to vouchsafe unnecessary harassment to a police official against whom there may be allegations constituting offence in relation to his official dealings with the public. This is the only purpose, as would be also made out from the observations made by the Hon’ble Supreme Court in Vijay Singh v. Union of India and Ors. (supra). We may, at the cost of repetition, mention that 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. It has further been observed that the Additional Commissioner of Police being next to DGP, which would mean next to the highest police ranking in Delhi Police, would give approval. We may, in support of the observation made above, add that the Rules of 1980 are applicable from Constables to Inspectors and the authorities competent to award punishments, major or minor, are Deputy Commissioner of Police and Assistant Commissioner of Police. The subordinate officials/officers from Constable to Inspector are the persons who are normally dealing with the public. It is not unknown that persons making complaints or dealing with men in uniform may not be satisfied and some times may even go to make complaints against the police officials/officers, if things do not happen or are not done the way they want, and thus make complaint against them. The Additional Commissioner of Police is in the hierarchy of very high ranking officers, next only to the Commissioner of Police in Delhi Police. The Additional Commissioner would have hardly any public dealings. He is in a position to take decisions independently and would also be in a position to overrule the decisions taken by punishing authorities under the Rules, who are far below in hierarchy than him. The safeguard of seeking prior approval of the Additional Commissioner is only with the purpose to see that a police official may not be unnecessarily harassed, which will bring down the morale in the police force in rank and file. If that be the only purpose, it does not appear plausible that the Additional Commissioner has to record reasons for preferring one course of action over the other.
14. In view of the discussion made above, we answer the question of law by holding that the Additional Commissioner of Police while choosing between the two options, i.e., as to whether a criminal case is to be registered and investigated, or departmental proceedings should be held, need not record reasons for opting either course of action. Law laid down to the contrary by this Tribunal in OA No. 95/2006 decided on 6.3.2007 in the matter of Naresh Kumar v. Commissioner of Police and Ors. taking a contrary view is overruled.
15. List the matter before appropriate Division Bench for decision on merits.