ORDER
1. In these petitions, the petitioners are challenging the legality of the order of Delhi Administration passed on 30th July, 1979 (Annexure ‘J’) and the order of the Additional Commissioner of Police, Delhi passed on 22nd August, 1979 (Annexure K). The order of the Delhi Administration directed holding of departmental enquiry against the petitioners (and some other police officers) and the officers of the excise department under R. 16.42 of the Punjab Police Rules, 1934. The enquiry was to be conducted in accordance with the procedure laid down by the C.C.S. (CCA) Rules, 1965. The order of the Additional Commissioner of Police purports to cancel the departmental proceedings held under R. 16.38(ii) ordered by him on 31st January, 1979. The main contention of the petitioners is that in the departmental proceedings held under R. 16.38(ii) of the Punjab Police Rules orders exonerating them were passed by the Additional Deputy Commissioner on 12th July, 1979, and the second enquiry ordered by Delhi Administration arising out of the same transaction and on the same allegations, is bad in law.
2. On 13/14th July, 1977, a tragedy took place within the limits of the police post Tank Road, Karol Bagh, in which 24 people died by consuming spurious liquor. The petitioner Sham Dev (Civil Writ Petition No. 1160/81) was working as an S.H.O., Karol Bagh police station under which the police post Tank Road falls. Gyan Prakash, petitioner (Civil Writ Petition No. 1159 of 1981) was working as Sub-Inspector but was not working in the Tank Road, post area. He was under the transfer orders to join Janak Puri area. From 5th July, 1977 till 14th July, 1977, he was on the casual leave. He reported for duty on 15th July, 1977 and proceed on transfer to police station, Janakpuri on the same day. Sham Dev Inspector, Gyan Chand Sub-Inspector, Gyan Prakash Sub-Inspector and some other police officers were suspected of being responsible to the tragedy. Sham Dev and Gyan Chand were suspended on 14th July, 1977 and Gyan Prakash was suspended on 20th July, 1977. There was a great uproar in the city on the liquor tragedy and the questions were also asked in the Parliament. Shri V. K. Buggal, Additional District Magistrate, was appointed to enquire into the liquor tragedy. He submitted his report on 15th October, 1977. The A.D.M. found involvement of the said police officers in the tragedy. The A.D.M. has also referred to the earlier tragedy and suggested some steps to avoid recurrence of it in future. Thereafter, on 16th November, 1978, the petitioners were reinstated in the service.
3. After their reinstatement the Additional Commissioner of Police decided to hold a departmental enquiry against the said police officials and passed an order on 3rd January, 1979 under R. 16.38(ii) of the Punjab Police Rules. Additional Deputy Commissioner of Police Om Prakash was appointed as an Enquiry Officer. In the statement of allegations the charge against Sham Dev was that as S.H.O. he failed to exert effective control over his subordinates as well as proper control over the persons who had been dealing in purchase and sale of illicit liquor in the area of police station Karol Bagh. He failed to take action when Sub-Inspector Gyan Chand requested him to supply additional force, so that steps could be taken to prevent the illicit liquor sale. He was thus negligent and remiss in the discharge of his official duties. The charge against petitioner Gyan Prakash was that the sale of spurious liquor was being done with the connivance of S. I. Gyan Prakash who was posted at P. S. Karol Bagh in those days. The conduct of S. I. Gyan Prakash made the subordinate staff also not to discharge their duties properly in stopping the sale of illicit liquor in the area and to check the occurrence of such crime. As against Sub-Inspector Gyan Chand, the charge was that he was posted as in charge Police post Tank Road in the jurisdiction of which police post 17 persons died due to the consumption of spurious liquor. The Sub-Inspector failed to stop the sale of spurious liquor in the jurisdiction of the police post where he was posted as in charge. Thus, he was negligent and remiss in the discharge of his official duties.
4. Om Prakash, Additional Deputy Commissioner of Police examined 17 witness, which were examined earlier by the A.D.M. and also collected other evidence during the proceedings. On the evidence he found that the sale or purchase of spurious liquor in the area was not established. He further found that none of the 17 witnesses supported the allegations made against the said police officials. The Additional Deputy Commissioner found that the assessment of the superior police officers of S.H.O. Sham Dev did not show that he had no proper control. There was also no evidence to show that he failed to control the situation within the area of Karol Bagh Police Station. Gyan Chand Sub-Inspector, who was in charge of police post Tank Road, on the date of the occurrence had stated before the A.D.M. that although he had asked for additional police force, the same was not supplied by S.H.O. Sham Dev which prevented him from effectively controlling the spurious liquor sale. The Additional Deputy Commissioner, on examination of the letter dated 2nd June, 1977, found that the additional police force was requested in view of the then forth-coming elections and not for any other specific purpose. Considering the evidence on record, the Inquiry Officer came to the conclusion that there was no evidence against Sham Dev and recommended his exoneration.
5. As regards S. I. Gyan Prakash, petitioner, the Enquiry Officer recorded the following findings :
“It has been alleged that spurious liquor was being sold with connivance of S. I. Gyan Prakash but I find no evidence, whatsoever, against this fact during my D.M. nor is there any evidence to the effect that he was deterring his subordinates staff in stopping the sale of spurious liquor. He was previously at the police post Tank Road from where he was transferred to the police station on the complaint of local leaders, hence the allegations against him may be vociferous. If the person in charge police post Tank Road, felt his interference in his administration, he could have complained against him to his superior officers. I also do not propose to frame any charge against him and recommend for his exoneration.”
6. Shri Gyan Chand S.I. was also exonerated by the Enquiry Officer. It may be noted that S.I. Gyan Chand who was a co-accused with the two petitioners, had given evidence against them before the A.D.M. Although he was in charge of the police post within which the tragedy took place, he was trying to put blame on the two petitioners. Against Sham Dev S.H.O. he complained that sufficient police force was not made available to him by the S.H.O. although the request was made in writing. Against Gyan Prakash S.I. he complained that although Gyan Prakash was not working in the PP Tank Road, he was interfering in the working of subordinates police officers in his area. It should also be noted that both the allegations made by S.I. Gyan Chand, the co-accused, were found without substance by the Enquiry Officer. These facts have a relevance because in the subsequent enquiry ordered by the Delhi Administration it is found that enquiry against Gyan Chand S.I. is dropped. In fact, he has been subsequently promoted to the post of Inspector.
7. On 30th July, 1979 Delhi Administration directed that disciplinary proceedings should be held against the petitioners under CCS (CCA) Rules, 1965 along with some other police officers and some excise officers in regard to the said tragedy. This enquiry was ordered in exercise of the powers under R. 16.42 of the Punjab Police Rules. On 4th August, 1979 Shri T. R. Kakkar, the Deputy Commissioner of Police, recommended to the Additional Commissioner of Police that notwithstanding the enquiry report of Additional D.C. P. Om Prakash, exonerating the petitioners they should be put on the list of persons of doubtful integrity at least for a period of five years and that the period of suspension should not be treated as one spent on duty and that they should not be paid anything more than the subsistence allowance for that period. The Additional D.C.P. further stated “all the material prosecution witnesses turned hostile or to say that they did not corroborate the facts on the summary of allegations.”
This definitely has been, to my mind, the result of winning over the witnesses either by offering them pecuniary benefits or due to other pressures or influences; otherwise there can be no other reason why all the material witnesses retracted from their earlier statements made during the course of magisterial enquiry. But the procedure as it stands in the departmental enquiries and the legal requirements of awarding punishments in such enquiries, this disciplinary authority is not in a position to hold the defaulter responsible under these circumstances. Thereafter, on 22nd August, 1979 the Additional Commissioner of Police Range Delhi ordered cancellation of the departmental enquiry ordered by him under R. 16.38(ii) on 31st January, 1979. In the said order it has claimed that the enquiry ordered by Delhi Administration under CCS (CCA) Rules, 1965 supersedes the enquiry ordered by him under the Punjab Police Rules. Feeling aggrieved by the second departmental enquiry ordered by the Delhi Administration, the petitioners made representations challenging the same. The representations were, however, rejected. The writ petition was filed thereafter.
8. The order of the Delhi Administration instituting fresh enquiry under the CCS (CCA) Rules, 1965 is challenged by the petitioner on the following grounds :
(1) Once a delinquent government servant is exonerated after a regular enquiry there cannot be a fresh departmental enquiry for the same charges arising out of the same transaction.
(2) Rule 16.42 of the Punjab Police Rules does not empower any fresh enquiry.
(3) The second enquiry ordered by the Delhi Administration was ordered without any application of mind and without considering the fact that the petitioners were already exonerated in the disciplinary enquiry under R. 16.38(ii) of the Punjab Police Rules.
(4) The second enquiry was mala fide inasmuch as S. I. Gyan Chand who was in charge of Tank Road police post, within whose jurisdiction the tragedy took place, was dropped from the second enquiry. The only adverse evidence against the petitioners before the A.D.M. was given by Gyan Chand, who was himself a co-accused in the departmental enquiry.
(5) The second enquiry against petitioner Gyan Prakash was ordered because of the local political pressure.
(6) The order of the Additional Commissioner of Police dated 22nd August, 1979 cancelling the earlier enquiry ordered by him under R. 16.39(ii) was illegal inasmuch as the said order purported to cancel the exoneration of the petitioners. The said order erroneously assumed that order of the Delhi Administration instituting second enquiry supersedes the earlier enquiry held under R. 16.38(ii).
9. The respondents justify the second enquiry on the ground that it was a separate enquiry under CCS (CCA) Rules of 1965. At the time of the arguments the respondents produced the file of the Delhi Administration to demonstrate that Lt. Governor had taken the decision to institute an enquiry under CCS Rules on 24th May, 1979. This was much before the order exonerating the petitioners was passed by the Additional Deputy Commissioner on 12th July, 1979. It is submitted that only the formal order was passed on 30th July, 1979, which was after the said order of the Additional Deputy Commissioner of Police. It is then submitted that the Lt. Governor took a decision on the basis of preliminary enquiry made by the A.D.M. in which the petitioners were found guilty. It is asserted that the enquiry under CCS (CCA) Rules could be legally ordered by the Lt. Governor in exercise of his powers under R. 16.42 of the Punjab Police Rules. It is claimed that Delhi police are also governed by the CCS Rules. Since the Lt. Governor was of the opinion that the excise officers, who are not governed by the Punjab Police Rules, should also be tried, it was necessary to order a departmental enquiry under the CCS Rules.
10. For properly appreciating the respective submissions we must look at the three orders more closely. They read as follows :
First order
“Whereas on an enquiry conducted by Shri V. K. Buggal, Additional District Magistrate, into the tragedy which took place in Karol Bagh area on the 13/14th July, 1977, in which 24 persons dies after having consumed spurious liquor, some of the allegations have been substantiated against the following police officials
1. Inspr. Sham Dev No. D-1/194
2. S. I. Gyan Chand No. D/1034
3. S. I. Gyan Prakash No. D/654
4. Const. Amar Singh No. 142/C
5. Const. Fateh Singh No. 1204/C
6. Const. Deep Chand No. 362/C
7. Const. Tota Ram No. 1237/C
And whereas the evidence and material available for prosecuting them may not be sufficient to prove their guilt beyond all reasonable doubts as required in the court of law, but which nevertheless seem sufficient to hold the departmental proceedings
Now, therefore, I. N. K. Singhal, Additional Commissioner of Police (Range), Delhi order under PPR 16.38(ii) that the said police officials be dealt with departmentally. The D.E. be conducted by Deputy Commissioner of Police, Central District, on day to day basis who will submit his findings to the undersigned expeditiously.
Sd/- (N. K. Singhal)
Additional Commissioner of Police (Range), Delhi No. 80/Vig/DA/78 dated 3rd January, 1979.
Copy forwarded for information and necessary action to 1. The Deputy Commissioner of Police, Central District Delhi for information and necessary action, with reference to his memo No. 19639 HAP/C dated 29th November, 1978 with summary of allegations and memo along with related papers for necessary action.”
Second order
“No. P3/5978-Home (P)/District Delhi Administration :
Delhi Home (Police) Establishment Department.
Dated the July, 1979.
ORDER
Whereas a liquor tragedy took place in Karol Bagh area on the 13th/14th July, 1977 in which 24 persons died after having consumed spurious liquor due to the negligence of Shri R. C. Garg (on deputation to Excise Department), Krishan Gopal, District Excise Officer, C. L. Sethi, Excise Inspector, R. S. Mathur, Excise Sub-Inspector, Jagat Inder Prakash, SDPO Shyam Dev Sharma, SWO Karol Bagh, Gyan Prakash Sub-Inspector and constables Tota Ram, Amar Singh, Fateh Singh and Deep Chand.
And whereas the aforesaid officers did not discharge their duties properly while they were responsible to check the manufacture and sale/use of spurious liquor in their areas.
AND WHEREAS on preliminary inquiry a prima facie case appears to have been made out against the above-named officers and it is, therefore, proposed to initiate a joint inquiry against all of them.
AND WHEREAS the Administrator is of the opinion that it is not feasible to conduct the aforesaid enquiry in accordance with the procedure laid down in the Punjab Police Rules, 1934 as the officers involved in the said enquiry are governed by different sets of disciplinary Rules.
AND WHEREAS the CCS (CCA) Rules, 1965 are applicable to Shri R. C. Garg and Jagat Inder Prakash (Assistant Commissioner of Police), the PPRS are applicable to Inspector Shyam Dev Sharma, Sub-Inspector Gyan Prakash, and constables Tota Rom, Amar Singh, Fateh Singh and Deep Chand.
NOW THEREFORE, in pursuance of the provisions of the 16.42 of the PP Rules, 1934 as applicable to the Union Territory of Delhi, the Administrator is pleased to order that disciplinary proceedings shall be conducted against S/Shri Krishan Gopal, C.L.S. Sri R. S. Mathur, Jagat Inder Prakash, R. C. Garg, Shyam Dev Sharma, Gyan Prakash, Tota Ram, Amar Singh, Fateh Singh and Deep Chand in accordance with the procedure laid down under the CCS (CCA) Rules, 1965 and that in all subsequent proceedings namely appeals and review etc., the relevant provisions of the CCS (CCA) Rules, 1965 shall apply in their case.
Sd/- (Mohan Singh)
Deputy Secretary (Home)
Delhi Administrator, Delhi.
No. F. 3/59/78-Home (P) Establishment. Dated 30th July, 1979.”
Third order
Copy of order No. 80/Vig/DA/78 dated 22nd August, 1979 from Additional Commissioner of Police (Range) Delhi to DCP/C etc. etc.
WHEREAS on an enquiry conducted by Shri V. K. Buggal, Additional District Magistrate, into the tragedy which took place in Karol Bagh area on the 13/14th July, 1977 and in which 24 persons died after having consumed spurious liquor, some of the allegations were substantiated against the following police officials :
1. Inspr. Sham Dev, No. DI/194
2. SI Gyan Chand No. D/1034
3. SI Gyan Chand Prakash No. D/654
4. Const. Amar Singh No. 142/C
5. Const. Fateh Singh No. 1204/C
6. Const. Deep Chand No. 362/C
7. Const. Tota Ram No. 1237/C
AND WHEREAS a departmental enquiry under PPR 16.38(ii) was ordered vide this office order No. 80/Vig./DA/78 dated 3rd January, 1979 against the said police officials.
AND WHEREAS in pursuance of the provisions of Rule 16.42 of the PPR 1934, as applicable to the Union Territory of Delhi, the Administrator Delhi Administration vide his order No. F. 3/59/78-Home(P)/Establishment dated 30th July, 1979 (copy enclosed) has issued orders that disciplinary proceedings shall be conducted against all of them (except SI Gyan Chand No. D/1034 and also against Shri Jagat Inder Parkash, SDPO (ACP) in accordance with the procedure laid down under CCS (CCA) Rules, 1965 and that in all subsequent proceedings namely appeals and review etc., the relevant provision of the CCS (CCA) Rules 1965 shall apply in this case.
AND WHEREAS the above mentioned order of the D.A. supersedes order under 16.38(ii) issued vide departmental enquiry under CCS (CCA) Rules has been ordered by superior authority.
Now, therefore, the aforesaid order No. 80/Vig./DA/78 dated 3rd January, 1979 under PPR 16.38(ii) is hereby cancelled and departmental proceedings there under are hereby dropped.
All concerned should be informed accordingly. No. 10304-10 HAP/C dated Delhi the 5th September, 1979
For Deputy Commissioner of Police
Central District Delhi”
11. Rule 16.38(ii) and R. 16.42 of the Punjab Police Rules 1934 read :
“16.38(ii). When 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 prescribed in R. 16.24 shall be followed. An officer found guilty on a charge of the nature referred to in this rule shall ordinarily be dismissed.
16.42. Notwithstanding anything contained in Rules 16.27, 16.38 and 16.40 the State Government may, if administrative exigencies so require, entrust an inquiry under any of the aforesaid provisions of P.P.R. to an officer other than a Police Officer or a Magistrate for enquiry into the charges of misconduct, dereliction of duty or corruption as the case may be and in the event of such an appointment having been made, the enquiry shall be conducted in accordance with the procedure laid down under these rules.
Provided that where the State Government is of the opinion that it is feasible to conduct an inquiry in accordance with the procedure laid down under these rules or where officers in the different grades are involved in a joint inquiry to whom different disciplinary rules are applicable the State Government may order that the enquiry may be conducted in accordance with the procedure laid down under the CCS (CCA) Rules, 1965. In the event of such an enquiry being held under the CCS (CCA) Rules, in all subsequent proceedings namely, appeal and review etc., the relevant provisions of the CCS (CCA) Rules, 1965 shall apply.”
12. The order of the Additional Commissioner of Police dated 22nd August, 1979 states that the enquiry ordered by the Delhi Administration supersedes his order dated 31st January, 1979 for holding enquiry under R. 16.38(ii). But the order of the Delhi Administration does not state that the earlier enquiry under R. 16.38(ii) was superseded. In fact, the first disciplinary enquiry under the Punjab Police Rules has not even been referred to in the order of the Delhi administration. The order of the Delhi Administration refers only to the preliminary enquiry conducted by the A.D.M. Number of questions arise for consideration :
1. Whether Lt. Governor was not aware of the earlier disciplinary enquiry under R. 16.38(ii) in which the petitioners were exonerated ?
2. Or whether in spite of the exoneration a second enquiry was ordered by the Delhi Administration ?
3. If the Lt. Governor was aware of the earlier enquiry could he ignore the same and order the second disciplinary enquiry on the basis of the preliminary enquiry of the A.D.M./
The respondents submit that the decision to order enquiry under CCS Rules was taken by the Lt. Governor on 24th May, 1979. But it was only formally announced on 30th July, 1979. The suggestion here is that Delhi Administration took an independent decision and it has nothing to do with the enquiry under R. 16.38(ii). If the decision was taken by Lt. Governor on 24th May, 1979 the Additional Commissioner of Police could have passed the order cancelling the enquiry under R. 16.38(ii) immediately. At that time, the enquiry under R. 16.38(ii) being conducted by Additional Deputy Commissioner of Police, was still not complete. Delhi Police is one of the departments of the Delhi Administration. A liquor tragedy and the ordering of Magisterial enquiry were widely publicised in the local newspapers. The questions were asked in the Parliament and the concerned Minister had given an assurance of the action being taken.
A report of the Hindustan Times of the said proceedings of Parliament dated July 17, 1977, is produced as annexure “C” with the petition. The report settled that the Member of Parliament of the area Mr. Sarsoonia had written twice to the Inspector General of Police yet no action was taken. He wanted to know why no action was taken against the Superintendent of Police in the area, while the subordinate officials had been punished. The S.H.O. of P. S. Karol Bagh, SI in charge of P.P. Tank Road and 4 constables on duties in the affected area had been placed under suspension. One SI, one ASI and 10 constables had been transferred from PP Tank Road. Further action would follow on receipt of the report of the Magisterial enquiry was the assurance given by the Minister. Can it be said that the Delhi Administration was unaware of the departmental enquiry ordered after the public hue and cry and the criticism in the Parliament that the Inspector General of Police was not taking any action ? Can it be further said that the Delhi Administration was unaware of the Minister’s Statement in the Parliament ? It must be assumed that when the Lt. Governor took the decision on 24th May, 1979, as alleged, he was aware of the proceedings being held under R. 16.38(ii) of the Punjab Police Rules.
If the Lt. Governor was not made aware of the pending departmental enquiry before he took a decision, his decision would be vitiated because the relevant material was not considered by the Lt. Governor before he could take a decision to institute enquiry under CCS Rules. If the Lt. Governor was made aware of the enquiry under R. 16.38(ii) he would have either ordered the cancellation of the said enquiry or could have allowed to continue it and directed a separate enquiry for excise officers. But if the Lt. Governor was aware of the enquiry under R. 16.38(ii) the decision of the Lt. Governor suffers from non-application of mind. He should have asked the question to himself as to whether he could in law, order a second enquiry when the earlier enquiry was already going on. It is not explained by the respondents as to why a decision taken on 24th May, 1979 was not announced till 30th July, 1979 by way of a formal order. This was necessary to be explained because in between the two dates, on 12th July, 1979 the Additional Deputy Commissioner of Police, had already submitted the enquiry report exonerating the petitioners. In absence of any such explanation, the formal order directing the holding of the departmental enquiry under CCS Rules on 30th July, 1979 must be assumed to be the only relevant decision for the purpose of the second enquiry.
13. The relevant files were produced at the time of the arguments. The files are in regard to the decision of the Delhi Administration to hold enquiry under the CCA Rules, 1965. The facts that emerge from the perusal of the file are that after the A.D.M. submitted his report the matter was referred to the Central Vigilance Commission. The Central Vigilance Commission was of the opinion that the concerned Superintendent of Police and the subordinate police officials as well as the officers of the excise Department should be tried together in one disciplinary proceeding. The police officials are governed by the Punjab Police Rules, hence the Ministry of Home Affairs of the Central Government, issued a notification making the CCS (CCA) Rules, 1965 applicable to the policed officials also. Thereafter it was decided that the Lt. Governor should exercise his powers under R. 16.42 of the Punjab Police Rules to have a common disciplinary proceedings for all the officers mentioned above. At this stage it was discovered that the departmental proceedings started against the police officials under R. 16.38 were complete and the report was submitted by the enquiry officer. After consultation with various agencies and the Law Department it was decided that in spite of the said fact proceedings under CCS (CCA) Rules should go on. A representation was made by the petitioner Sham Dev complaining that a second enquiry cannot be ordered as he was already exonerated in the first enquiry.
There were again consultations among the various agencies. The view expressed was that the enquiry report was still under consideration of the disciplinary authority, namely, the Additional Commissioner of Police (who had ordered the enquiry under R. 16.38) when on 30th July, 1979 a decision to institute the enquiry under the CCS (CCA) Rules was taken by the Lt. Governor. The Additional Commissioner of Police, Delhi, had thereafter cancelled the enquiry under R. 16.38 by his order dated 22nd August, 1979. In view of this position, the view of the Delhi Administration was that disciplinary enquiry under CCS (CCA) Rules could be legally continued. It is unfortunate that the counter affidavit has not disclosed these facts truthfully but contains merely vague assertions. Lot of arguments in the court took place on the question as to whether the Lt. Governor was aware of earlier proceedings under R. 16.38 and whether in spite of that a decision to institute enquiry under CCA Rules was taken or not. If I would not have called for the files the judgment would have been delivered on erroneous assumption of facts. The respondents should have files a straight forward affidavit and invited the decision of the court as to whether their view on the validity of the proceedings under the CCS (CCA) Rules was correct or not.
14. Even assuming that the Enquiry Officer’s report exonerating the petitioners was still pending acceptance, what is the effect of the said pending proceedings on the new enquiry ordered by the Lt. Governor ? Does R. 16.42 permit two enquiries ? On first principles of law, there cannot be two departmental enquiries, in so far as the same officers are involved in both the enquiries. The object of both the enquiries is the same, namely, to find out as to which officers are responsible to the liquor tragedy of 1977 and what action should be taken against them departmentally. Both the enquiries are started on the basis of the enquiry conducted by the A.D.M. and the report submitted by him. The finding of the A.D.M. was that although the petitioners and other police officials were remiss in their duty, the evidence was not sufficient to file a criminal case and, therefore, the officials concerned should be proceeded against departmentally. Both, the Additional Commissioner of Police and the Lt. Governor has acted on this recommendation of A.D.M. in ordering the departmental enquiries. Let us analyze R. 16.42 of the Punjab Police Rules. The Rule opens with a non obstante clause. A State Government cannot order disciplinary enquiry under R. 16.37, 16.38 and 16.40 through an officer other than a police officer or Magistrate. The Rule, therefore, empowers the State Government to conduct an enquiry by such an officer if administrative exigencies so require.
The proviso further empowers the State Government to order enquiry under CCS (CCA) Rules, 1965, whether it is of the opinion that it is not feasible to conduct an enquiry in accordance with the procedure laid do under the PPS Rules. It can also order such an enquiry, if a joint enquiry is found necessary with officers who are governed by the CCS (CCA) Rules. If the enquiry is ordered under R. 16.38 (as was done by the Additional Commissioner of Police in the present case) the enquiry has to be conducted by a police officer and under the provisions of the Punjab Police Rules. In forming its opinion the State Government must address itself to a question whether it is feasible to conduct an enquiry under R. 16.38 or not. The procedure under R. 16.38 and R. 16.42 is thus mutually exclusive. If there is no enquiry under R. 16.38 then alone an enquiry can be ordered under R. 16.42. If R. 16.38 and R. 16.42 are read together it is clear that once an enquiry is held under R. 16.38 no enquiry can be held simultaneously or afterwards, under 16.42.
The fact that a complete enquiry was conducted by recording evidence and the finding was recorded by the enquiry officer itself shows that enquiry of the police officials was feasible under R. 16.38. If that is so, precondition for invoking the provisions under R. 16.42 are not satisfied and enquiry cannot, therefore, be ordered under R. 16.42. Can it be said that the opinion of the State Government to hold a joint enquiry with the officers governed by CCS (CCA) Rules, 1965 would permit an enquiry under R. 16.42 in regard to police officials against whom the enquiry under R. 16.38 is pending or is completed ? A fresh enquiry cannot be ordered in regard to police officials by joining them with other officials. The non obstante clause governs merely that part of the Rule where the enquiry is to be conducted by an officer other than a police officer or a Magistrate. R. 16.42 does not empower the State Government to by pass the proceedings instituted against the police officials under R. 16.38.
The order of the Additional Commissioner of Police dated 22nd August, 1979 states that the order of the Delhi Administration supersedes the order of the proceedings under R. 16.38. However, as a matter of fact, there is no mention of such supersession in the order of the Delhi Administration. Indeed, there is no such power in the State Government under R. 16.42. The reason is quite apparent. An enquiry under R. 16.42 can be ordered only when enquiry under R. 16.38 cannot be started because it is not feasible to hold such an enquiry. Another objection by the petitioner is that R. 16.42 refers to officers for joint enquiry “in the different grades”. The ‘grade’ here means ‘Grade’ in the police force and not outside the police force. The Delhi Administration has independent power to take action against the excise officials. These officials are not governed by Punjab Police Rules. Provisions of R. 16.42 are part of Punjab Police Rules which are applicable only to the police officials. The object of R. 16.42 is to take out the prospective enquiry under Punjab Police Rules and to bring it under the CCS (CCA) Rules. Rule R. 16.42 cannot in terms, be invoked for disciplinary action against the excise officials. The joint enquiry, it is submitted, of police officials and excise officials under R. 16.42 is, therefore, bad in law.
I find some force in this submission. The petitioners, being the police officials, only know that they are governed by the Punjab Policed Rules. The Rules are statutory Rules. They did not have any knowledge that the Minister of Home Affairs had extended the application of the CCS (CCA) Rules to police officials also. As to when these Rules were made applicable to police officials was not stated in the counter affidavit. It is only after the perusal of the relevant files I found that the orders of the Ministry of Home Affairs were passed just prior to the order of the Delhi Administration dated 30th July, 1979. The petitioners were, therefore, at a disadvantage in meeting the respondent’s case. Apart from it the term ‘Grade’ in R. 16.42 would mean only the grade in police force. It cannot mean a ‘service’ a separate service such as ‘Excise’. IPS officers are governed by CCS (CCA) Rules and not by PP Rules. Thus where an IPS Officer is also to be tried along with subordinate officers R. 16.42 can be invoked. Not, where the officers belong to distinct services.
15. Let us now examine the effect of the order of the Additional Deputy Commissioner passed on 22nd August, 1979, cancelling his own order passed on 31-12-1979, instituting the enquiry under R. 16.38. As we have noticed, the order of the Delhi Administration does not cancel or supersede the said order of the Additional Commissioner of Police dated 31-1-1979. Therefore, the proceedings under R. 16.38 would be ‘pending’ proceedings when the order was passed by the Delhi Administration. Additional Commissioner of Police’s order purporting to cancel his earlier order, will have no effect on the legal position as stated above. The enquiry officer has exonerated the petitioners and submitted his enquiry report in the form of recommendations. The enquiry report was sent to Shri T. R. Kakkar, Deputy Commissioner of Police, Central District who was the disciplinary authority for the said police officials. In his order dated 4th August, 1979 the said disciplinary authority held, “But the procedure as it stands in the departmental enquiries and the legal requirements of awarding punishments in such enquiries, this disciplinary authority is not in a position to hold the defaulters responsible under these circumstances.” He further recommended “I feel that the defaulters are definitely of unsound integrity and, therefore, their names should be brought on the list maintained for persons of doubtful integrity at leads for a period of next 5 years. This is all that is possible against the defaulters under the circumstances. The period for which they remained under suspension shall not be treated as duty and they will not get more than what they have already drawn in the period as subsistence allowance.”
16. The disciplinary authority sent these recommendations, with the entire departmental enquiry file for further guidance/instructions to the Additional Police Commissioner.
17. Two aspects of the matter may be noted. Not only the Enquiry Officer but the disciplinary authority had found that the petitioners cannot be held responsible for the tragedy according to the legal requirements. The order of the Disciplinary authority was passed on 4th August, 1979 that is, after the order of Delhi Administration dated 30th July, 1979 under R. 16.42. It means that till that date the disciplinary authority and indeed the Additional Commissioner of Police had not accepted the position that the enquiry ordered by Delhi Administration superseded the enquiry already pending.
18. Enquiry under R. 16.38 was ordered by Additional Commissioner of Police, an officer superior to the disciplinary authority. It may be assumed that in these circumstances the final decision was to be taken by the Additional Commissioner of Police. The question is what further actions were open to the Additional Commissioner of Police after the finding of the Enquiry Officer exonerating the petitioners and the acceptance of the said findings by the normal disciplinary authority ? Could the Additional Commissioner of Police set aside the findings of the Enquiry Officer and the disciplinary authority and hold a fresh enquiry ? Does he have power to cancel the whole enquiry ? On 18th September, 1979, in reply to the letter of Sham Dev requesting for a copy of the enquiry report, the Deputy Commissioner of Police, Vigilance, informed the petitioner that the copy of the order of the Additional Deputy Commissioner stating that the departmental enquiry has been “cancelled/dropped” was already communicated to him.
19. The legal effect of the order of the Additional Commissioner of Police canceling/dropping the departmental enquiry under R. 16.38 is similar to an order accepting the exoneration of the petitioners and no other. It cannot mean that whole enquiry was ab initio cancelled so as to convey that even the findings regarding exoneration were cancelled. An authority ordering enquiry can cancel the enquiry ab initio only if a fundamental illegality going to the root of the matter is discovered later on. Suppose if it is discovered that the enquiry was conducted by an Officer subordinate in rank to that of the appointing authority, the entire enquiry would be vitiated. The disciplinary authority can in such a case cancel the enquiry ab initio. But where an enquiry is held according to law and the procedure prescribed by the Rules, by a competent authority, such an enquiry cannot be cancelled ab initio. As pointed out earlier the order of the Delhi Administration does not in term supersede the earlier proceedings under R. 16.38 Cancellation of the proceedings under R. 16.38 by the Additional Commissioner on the ground that they are superseded by the order of Delhi Administration is, therefore, illegal. The net result of the discussion is that the order of the Additional Commissioner dated 22nd August, 1979, in law, amounts to acceptance of exoneration of the petitioner and dropping further proceedings. On this view of the legal position no further relief is necessary to the petitioner in regard to the said order.
20. The next question for consideration is whether the Delhi Administration could hold separate proceedings under the CCS (CCA) Rules separately against the petitioners. This is on the assumption that the said rules are applicable to police officials also. There is a second assumption that no joint enquiry can be held under R. 16.42. I have already held that even if it is assumed that an enquiry under R. 16.38 was pending no joint trial can be held under R. 16.42 because the precondition of the exercise of power under R. 16.42 is that no proceedings under R. 16.38 (and other provisions of the Punjab Rules) is feasible. The same principle would apply even if a separate trial of police officials was to be held under R. 16.42 and also on the facts of this case. But even if it is assumed that the proceedings under R. 16.38 continued and the Additional Commissioner could drop the proceedings confirming exoneration of the petitioners, the second proceeding under CCS (CCA) Rules would be impermissible. The law on the point is well settled through the decisions of the Supreme Court. In State of Assam v. J. N. Roy Biswas. [1976-II L.L.J. 17] the Supreme Court has held (At p. 19) “Once a disciplinary case has been closed and the official reinstated, presumably on full exoneration, a chagrined Government cannot restart the exercise in the absence of specific power to review or revise, vested by rules in some Authority. The basis of the rule of law cannot be breached without legal provision or other vitiating factor invalidating the earlier enquiry.”
In Dwarkachand v. State of Rajasthan it was contended on behalf of the State that if an enquiry is held in a slipshod manner or dishonestly it should be possible for the State to hold the second enquiry after the earlier exoneration, particularly because the public servant holds the post at the pleasure of the President or the Governor. The Court, considered this argument and contrasted with the other possibility, namely, that where the higher authority is determined that a certain person should be dismissed, it may go on ordering one departmental enquiry after another till it can find someone who will do what it wishes. The court held : “Therefore of the two possible courses, we are of opinion that the one in which there is no second departmental enquiry after exoneration in the previous enquiry is the safer of the two”. The court further held, “If there is no rule or law which lays down that an order exonerating a public servant in a departmental enquiry is open to revision and a fresh enquiry ordered, it is not open to the State to assume such a power on the ground that Art. 310 provides that tenure of public service is at the pleasure or the President or the Governor or on the ground that the State is the master and the public servant is the employee and the master can do anything to his employee.”
21. The Lt. Governor of Delhi Administration is not empowered by the Punjab Police Rules or any other provision of law to revise the order of the Additional Commissioner of Police and to order a fresh enquiry. Therefore, it is not competent for Delhi Administration to hold even a separate enquiry of the petitioners (or to hold a joint enquiry) under CCS (CCA) Rules.
22. There are two other submissions of the petitioners. It is claimed that Gian Chand, SI who was in charge of Tank Road, Post, in whose jurisdiction the liquor tragedy took place, is being dropped in the second enquiry ordered by Delhi Administration. It is submitted that Gian Chand was also exonerated like the petitioners in the enquiry under R. 16.38. The further submission is that Gian Chand was the only witness on the basis of whose evidence petitioners were found guilty by the A.D.M. The second enquiry, it is submitted, is, therefore, mala fide. If the enquiry can be legally ordered against the petitioner I do not think that it would be mala fide simply because some other person is not proceeded against. The allegations of mala fide must be more specific and against specific persons so that they get an opportunity to meet the charge of mala fides.
There is no substance in the petitioner’s contention and the same is rejected. Another ground of attack is that the proceeding against Gyan Prakash, petitioner, was initiated due to political motives. The alleged motive is that during the Emergency certain actions taken by him had created a feeling of hostility in a local Janata leader. After Janata party formed the government the petitioner was involved in the proceedings because of the said hostility. There is no substance in this grievance. The earlier proceedings must have been started during the Janata regime but the present proceedings were initiated when the said party was no more in power. The present proceedings are filed on the recommendation of the Central Vigilance Commission which does not take into consideration any party affiliations. The submission of the petitioner is reckless and devoid of any substance and the same is rejected.
23. There is a practical aspect also. Departmental proceedings resulting in dismissal is a good deterrent. But is that purpose likely to be achieved on the facts of the present case ? Petitioners were exonerated on merits because the prosecution witnesses did not stand by their evidence before the A.D.M. Are they likely to do so now ? Will they not be confronted with their statements in the earlier proceedings which was a quasi-judicial proceeding ? There is no evidence of direct involvement of the petitioners in the tragedy. The statements of Gyan Chand is the only evidence. He was found guilty by A.D.M. like the petitioners. He was exonerated like the petitioners in the departmental proceeding. Will it be possible in law to hold petitioners guilty for the tragedy on that indirect evidence ?
24. All agencies of State have public accountability. The citizens might express a feeling of consternation, when they find that the officials responsible for such a gruesome tragedy are not punished in law. A knowledgeable and a well meaning citizen can ask several questions. Is it not the primary duty of the State under Art. 47 of the Constitution to prohibit sale and consumption of intoxicating drinks and drugs which are injurious to health ? Is it not the social duty of the State to protect the Society in this regard when the State exercises prerogative power in regard to sale in intoxicating drinks ? When it is officially accepted (A.D.M.’s report) that trade in illicit liquor is going on in certain areas of Central Delhi, why effective steps were not taken for the last twenty years to prevent such a trade ?
When it is accepted by the Government that a trade in illicit liquor prospers because of the corruption of the police officials, why no action is taken in time ? What steps are taken by the State to wean away the ‘Sansi tribe’ from the trade of illicit liquor and to give them education for rehabilitation in other avocations ? Why is it that the Preventive Detention enactments are not used against the notorious gang leaders and their political and administrative supporters ? Why is it that the courts take a disinterested legalistic view in concrete cases brought before them ? As a citizen, a Judge may not be able to dismiss those questions as figment of imaginations. The judiciary has its own limitation. The approach of the court is summed up neatly by Bose J., in Kashmira Singh v. State of Madhya Pradesh, , in which Kashmira Singh had committed a murder of one Ramesh, a small boy aged five, in the following words (At p. 160) :
“The murder was a particularly cruel and revolting one and for that reason it will be necessary to examine the evidence with more than ordinary care lest the shocking nature of the crime induce an instinctive reaction against a dispassionate judicial scrutiny of the facts and law.”
The preventive actions are not within the province of the court. The redressal function has to be performed within the framework of law. If personal instinctive reactions or public sentiments are to decide the course of law we might land up in a position where the remedy may prove to be worse than disease.
25. For the reasons stated above the order of the Delhi Administration dated 30th July, 1979 for holding departmental enquiry against the petitioners under R. 16.42 of the Punjab Police Rules read with CCS (CCA) Rules, 1965 is quashed and set aside. On the facts and circumstances of this case, I do not allow any costs to the petitioners. The rule in both the cases is made absolute.