Central Administrative Tribunal - Delhi
Ram Khilaree vs Gnctd on 9 September, 2024
1
OA No. 2162/2023
Item No. 37/C-II
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 2162/2023
Reserved on: - 06.08.2024
Pronounced on: - 09 .09.2024
Hon'ble Mr. R.N. Singh, Member (J)
Hon'ble Mr. Rajinder Kashyap, Member (A)
Ram Khilaree,
S/o Sh. Khairatee Lal
Age- 45 years
R/o- Village Muhana
Gudhanchandraji, Teh- Nadoti
Distt. Karauli, Rajasthan-322213
... Applicant
(By Advocate: Mr. Sachin Chauhan with Ms Ridhi Dua, Mr.
Abhimanyu Baliyan and Mr. Himanshu Raghav)
Versus
1. Govt. of NCT of Delhi
Through the Chief Secretary,
Govt. of NCTD, A-Wing, 5th Floor,
Delhi Secretariat, New Delhi-110003
2. The Commissioner of Police
Police Headquarters, Jai Singh Road
New Delhi.-110001
3. The Joint Commissioner of Police,
Southern Range, Delhi
Through The Commissioner of Police
Police Headquarters,
Jai Singh Road
New Delhi-110001
4. The Dy. Commissioner of Police,
South Distt., Delhi
Through The Commissioner of Police
Police Headquarters,
Jai Singh Road
New Delhi-110001 ... Respondents
(By Advocate: Mr. A K Singh and Mr. Gyanendra Singh)
2
OA No. 2162/2023
Item No. 37/C-II
ORDER
Hon'ble Mr. Rajinder Kashyap, Member (A):-
By way of the present OA filed u/s 19 of the AT Act, 1985, in para 8 of the OA, the applicant has prayed for the following reliefs: -
"8.1 To set aside order dated 28.07.2022 whereby the extreme punishment of dismissal from service is inflicted upon the applicant and order dated 13.06.2023 whereby the statutory appeal of the applicant has been rejected and to further direct the respondents to reinstate the applicant back in service with all consequential benefits including seniority & promotion and pay & allowance.
And/or Any other relief which this Hon'ble Court deems fit and proper may also awarded to the applicant."
2. Pursuant to notice, the respondents have filed their counter affidavit opposing the claim of the applicant and have prayed for dismissal of the present Original Application. The applicant has also filed his rejoinder denying the contention of the counter affidavit and reiterated his claim in the OA.
3. The brief facts of the present case are that the applicant was appointed as Constable in Delhi Police on 26.03.2003 and further promoted to the post of Head Constable (Exe.) The applicant claims that he has unblemished service record. The applicant claims that he is sole bread earner of his family which consists of his wife and one daughter (14 years old) and Mother. He states 3 OA No. 2162/2023 Item No. 37/C-II that he was falsely implicated in FIR No. 439/2022 U/s 384/389/120 B IPC, registered at PS Sangam Vihar, Delhi on 12.07.2022. The applicant states that the applicant was arrested on the same day i.e. 12.07.2022. The applicant was granted bail vide order dated 16.07.2022. He further submits that investigation in the present case is not complete till date. The applicant further states that the disciplinary authority issued an order dated 28.07.2022 (received by the applicant on 01.08.2022) whereby the applicant was dismissed from service by invoking the power under Article 311 (2) (b) of the Constitution of India that too without conducting a departmental enquiry. The Disciplinary Authority has admitted in the above-mentioned disciplinary order that a preliminary enquiry was being conducted by Sh. Vinod Narang, ACP/Mehrauli, Delhi in the matter, however, preliminary enquiry report was never supplied to the applicant till date.
4. The applicant states that the reasons recorded by the Disciplinary Authority to dispense away with the departmental enquiry are vague, evasive and false. The sole objective is to adopt a short cut method to avoid departmental enquiry and invoke the powers under Article 311 (2) (b) of the Constitution of India causing great prejudice to the applicant and further establishing the absolute abuse of process of law.
5. The applicant further states that it is not in the public interest and even as per rule of law to use the provision of Article 311 (2) 4 OA No. 2162/2023 Item No. 37/C-II
(b) of the Constitution of India, it was incumbent upon the authorities not to use Article 311 (2) (b) of the Constitution of India in the present case and to give opportunity to the applicant to put forward his defense in the departmental enquiry. The gravity of misconduct alleged in the criminal case cannot be ground to invoke the power under Article 311 (2) (b) of the Constitution of India. The applicant as per rule of law must be given opportunity to put forward his defence in regular departmental enquiry until and unless the departmental enquiry is not reasonably practicable. The reasons recorded in present impugned order to dispense away with the departmental enquiry are not tenable in the eyes of law and Article 311 (2) (b) of the Constitution of India is being used as a short cut method to dismiss the applicant.
6. The applicant states that the Disciplinary Authority has assumed as if the allegations made in criminal case already stands proved and thus with these presumptions, the present impugned order is being passed. He mentions that once the order of Disciplinary Authority is based on assumption as if the allegations made against the applicant already stand proved that too on the basis of preliminary enquiry and FIR, the same act is enough to vitiate the order of Disciplinary Authority as being bad in law and based on assumptions, suspicion and surmises. 5 OA No. 2162/2023 Item No. 37/C-II
7. The applicant states that he made an appeal against the order of disciplinary authority dated 28.07.2022 of punishment of dismissal, which was rejected by the Appellate Authority on 13.06.2023. The order passed by the Appellate Authority is absolutely non-speaking and mechanical in nature. It does not deal with any of the submissions raised within the body of statutory appeal. The order of Appellate Authority only reproduces the order of Disciplinary Authority.
8. The applicant states that the concurrence of the Spl. C.P., Admn. has to be taken in pursuance to the conditions laid down in the Circular dated 11.09.2007 before taking a decision to invoke the provision of Article 311 (2) (b) of the Constitution of India. The conditions mentioned in the above mentioned circular read as follows: -
"Only in cases where Disciplinary Authority is personally satisfied on the basis of material available on file that the case is of such a nature that it is not practicable to hold an enquiry in view of threat, inducement, intimidation, affiliation with criminals etc. and keeping in view the specific circumstances of the case it is not possible that PWs will depose against the defaulter and disciplinary authority has no option but to resort to Article 311 (2) (b) should such an action be taken. Prior to such an order, a PE has to be conducted and it is essential to bring on record all such facts. It has also been decided that before passing an order under Art. 311 (2) (b) of the Constitution, Disciplinary Authority has to take prior concurrence of Spl. CP/Admn.)."6 OA No. 2162/2023
Item No. 37/C-II
9. The applicant states that there is no concurrence of Spl. Commissioner of Police as per the requirement of the aforesaid circular and thus the present impugned order is being passed in violation of circular dated 11.09.2007 and thus the present order is bad in law being passed without jurisdiction and competence by the authorities.
10. The applicant has cited case laws but the same has not been considered by the appellate authority. The Appellate Authority has moved on premises of gravity of misconduct and presumption that the allegation against the applicant stands proved. The Appellate Authority has totally missed out the prerequisite as per Article 311 (2) (b) of the Constitution of India for invoking the power under the said article, therefore, the order of Appellate Authority is bad in law. He contends that the Appellate Authority has blindly supported the reasons put forth by the Disciplinary Authority for dispensing away with the departmental enquiry. The reasons recorded for dispensing away with departmental enquiry are based in suspicion and surmises.
11. In the present Original Application, the applicant has raised the following grounds: -
(i) The applicant states that the reasons recorded by Disciplinary Authority to dispense away with the departmental enquiry are based on suspicion and surmises.7 OA No. 2162/2023
Item No. 37/C-II
(ii) There is no occasion for the Disciplinary Authority to record that in the present case, departmental enquiry is not reasonably practicable.
11. The applicant contends that once the preliminary enquiry is possible then even a departmental enquiry is also possible thus the reasoning recorded by the Disciplinary Authority for dispensing away the departmental enquiry is bad in law. The applicant further states that the order of Appellate Authority is absolutely non-speaking and mechanical in nature and repeats the same illegality as committed by Disciplinary Authority. The Appellate Authority also moves on suspicion and surmises and fails to apply his mind on the specific submissions made by the applicant within the body of statutory appeal and law relied in statutory appeal.
12. The applicant submits that the Disciplinary Authority did not even make the slightest possible effort to initiate a departmental enquiry as only after initiating departmental enquiry a Disciplinary Authority can come to the conclusion that departmental enquiry is not reasonably practicable and only acting on the presumption and surmises. He further states that no order for initiating the departmental enquiry was made by the department, thus, it is wrong to say that in the present case, departmental enquiry is not reasonably practicable. 8 OA No. 2162/2023 Item No. 37/C-II
13. The applicant submits that the authorities failed to consider that no substantial material has been collected in the preliminary enquiry to come to a conclusion that witness will be discouraged to appear in departmental enquiry.
14. Learned counsel for the applicant is placing reliance on the latest judgment of the Hon'ble Tribunal qua the same respondent on the use of Article 311 (2) (b)of the Constitution of India i.e. OA No. 2097/2019 in the case of Neeraj Kumar Vs. Delhi Police decided on 01.11.2019, OA No. 2867/2019 in the case of Ins. Jasmohinder Singh decided on 16.10.2020, OA No. 702/2019 in the case of Ins. Dharmender Singh Dangi decided on 07.01.2021, OA No. 1912/2015 titled Kripal Singh Vs. Govt. of NCTD & Ors. decided on 11.03.2021 and OA No. 1114/2015 in the case of Tara Dutt Vs. GNCT of Delhi & Ors. decided on 17.06.2021 and connected OAs No. 1383/2020, 3508/2018, 4021/2016,. 3027/2018, 2777/2019, 3267/2019, 467/2020 and 34/2021 titled Sumit Sharma Vs. Govt. of NCT of Delhi & Ors. decided on 10.02.2022. Hence, the present O.A.
15. The applicant states that in the FIR lodged against him, a criminal trial will take place in the court of law. He states that if trial is possible then departmental enquiry is also possible. He states that the Disciplinary Authority has recorded in the disciplinary order that there is no reasonable belief of authority that witness may not come forward to depose against the 9 OA No. 2162/2023 Item No. 37/C-II applicant. The said belief of Disciplinary Authority is based on suspicion and surmises. There is no attempt to initiate a departmental enquiry and nothing has been brought on record, subsequently to the allegation that the applicant has made any attempt to influence the witness and thus with this presumption, the present impugned order is being passed. He states that once the order of Disciplinary Authority is passed on assumption as if the allegations made against the applicant already stand proved that too on the content of FIR, the same act is enough to vitiate the order of Disciplinary Authority as the same being bad in law.
16. Counter reply has been filed by the respondents on 15.10.2023 wherein they have mentioned that on 12.07.2022, Sh. Issac Wilson Sam R/o 1680/2 Govind Puri Ext. Kalkaji, New Delhi lodged a written complaint stating therein that he had visited to the residence of Mrs. Anu Saini W/o Ravinder Singh, R/o K-1- 18/208 Sangam Vihar, Delhi 110080 who he has know since last four years.. She was in a very bad financial condition as her husband was a kidney patient and was on dialysis since long time. She used to take money from him to get her husband's dialysis done. He used to help her but in return she used to give him a cheque saying that she will sell her house and return his money. As per FIR, enquiry report and statement of Sh. Issac Wilson Sam, it is not clear that how many cheques were given by Mrs. Anu Saini to Sh. Issac Wilson Sam.
10OA No. 2162/2023 Item No. 37/C-II
17. The respondents further submit in their counter reply that on 09.07.2022, when the complainant went to her house, Mrs Anu Saini asked him to come into a relationship and made his video in objectionable position with her. After sometime, three police personnel and one lady having Press I-Card came into the house asking that what was happening in the house and asked him who was he. He told them that he had come to take his money from Mrs. Anu Saini. Then Mrs Anu Saini said that he raped her and she played a video film in which he was in a compromising position with her. He tried to explain to the police personnel but they did not listen to him and forced him to pay an amount of Rs. 30 Lacs to remove all the charges leveled against him and assured him to delete the video from the mobile phone of Mrs. Anu Saini. He found himself in a trouble and in order to save his reputation, he transferred Rs. 5 Lacs in the bank account bearing no. 626702010001208 of Mrs. Anu Saini, Union Bank Branch, C.R. Park, New Delhi. It is further submitted that he was asked to pay the remaining amount i.e. Rs. 25 Lacs by 11.07.2022 to save his reputation. They warned him if he fails to do so, they would register a case against him and put him behind the bars. He left from there and switched off his mobile phone due to fear. They threatened the complainant that they would make his video viral. The complainant discussed the matter with his known persons and on their advice he went to the police station to lodge a complaint. When he was on his way to the police station, he 11 OA No. 2162/2023 Item No. 37/C-II received whatsapp calls from mobile nos. 9718724506 and 9555333005. He recorded the whatsapp calls showing the pictures of the caller in the display profile. He took the screen shots of both the calls and enclosed the print out of the same along with his complaint.
18. On the basis of written complaint of Sh. Issac Wilson Sam R/o 1680/2 Govind Puri Ext. Kalkaji, New Delhi, a case vide FIR No. 439/22 U/s 384/389/120 B IPC, PS Sangam Vihar, was registered on 12.07.2022. In the said matter, an enquiry was conducted by Sh. Vinod Narang, ACP/Mehrauli. During the enquiry, it was found that Head Constable (Exe.) Ram Khilaree, Belt No. 1693/SD hatched a conspiracy with civilians and Head Constable (Exe.) Manoj Khokhar, Belt No. 2030/SD to execute their plan to extort money. Copies of FIR, E-Chithha, fresh and detailed statement of the victim/complainant, DD entries have been collected from PS Sangam Vihar. Prima facie, it appears that the allegations leveled against both the police officers were substantiated during the enquiry.
19. On perusal of the said enquiry report and after considering the relevant records, the Disciplinary Authority dismissed the defaulter i.e. Head Constable Ram Khilaree (PIS No. 28031818) with immediate effect under Article 311 (2) (b) of the Constitution of India. In reply to the facts, the respondents submit that as per enquiry report of ACP/Mehrauli, Delhi it is clear that the Head 12 OA No. 2162/2023 Item No. 37/C-II Constable is a public servant with a criminal bent of mind and there is every possibility that no witness/complainant would come forward to depose them in case a departmental enquiry is initiated against him. Under these facts and circumstances, Article 311 (2)
(b) of the Constitution of India is invoked in the present case. It would be in the interest of general public and society as well as for the establishment of rule of law.
20. The applicant has filed rejoinder to the reply filed by the respondents on 20.10.2023 and he has reiterated the averments made by him in his pleadings to claim his innocence in this matter. In the rejoinder, it is admitted by the applicant that in the present case a preliminary enquiry was conducted, the order of dismissal from service dated 28.07.2022 was passed by Disciplinary Authority. Once a preliminary enquiry is possible then departmental enquiry is also possible. The applicant submits that the Hon'ble Tribunal in various judgments on the same ground has allowed many petitions in respect of Article 311 (2)
(b).
21. We have heard learned counsels for the parties and have perused the pleadings available on record. Learned counsel for the applicant has placed reliance on the judgment in the cases i.e. the order passed by the Principal Bench of this Tribunal on 13.12.2023 in OA No.1019/2023 in the case of Dushyant Kumar vs. Govt. of NCT of Delhi & Ors., The judgment 13 OA No. 2162/2023 Item No. 37/C-II dated 19.02.2024 of the Hon'ble High Court of Delhi in W.P.( C) No. 2407/2024 in Govt. of NCT of Delhi and Ors. Vs. Dushyant Kumar; The order passed by the Principal Bench of this Tribunal on 16.04.2024 in OA No.542/2023 in the case of Deepak vs. Govt. of NCT of Delhi& Ors; The judgment dated 22.04.2024 of the Hon'ble High Court of Delhi in W.P.( C) No. 1258/2023 in Commissioner of Police Delhi Police & Ors. Vs. Manjeet; & judgment dated 20.03.2024 in W.P.( C) No. 4201/2024 in Commissioner of Police & anrs. Vs. Jagmal Singh and also the judgment dated 20.03.2024 of the Apex Court in Petition for Special Leave to appeal (C) No.11681/2024 in case of Commissioner of Police & anr. Vs. Jagmal Singh; the judgment dated 23.04.2024 passed by the Hon'ble High Court of Delhi in W.P.(C) No. 5562/2024, CAV 181/2024, CM Appl. No. 22929/2024 in the case of Commissioner of Police vs. Sant Ram; and the circular dated 13.5.2024 issued by the Delhi Commissioner of Police, Legal Division dated PHQ Delhi are relevant in this case as well.
22. The learned counsel for the respondents pleaded that the respondents have given detailed justification of invocation of the Article 311 (2) (b) of the Constitution of India in their Disciplinary order and Appellate order. They repeatedly stated that further continuation of the applicant in disciplined force like Delhi Police 14 OA No. 2162/2023 Item No. 37/C-II which is responsible for protecting the society and citizens of the country from immoral and disrespectable activities, will rudely shake the faith of the citizens in Delhi Police Force. The applicant has acted highly unbecoming of Police Officer. Therefore, keeping in view the position in the matter, respondents have resorted to invocation of Article 311 (2) (b) of the Constitution of India and dismissed the applicant from the government service.
23. The Disciplinary Authority while issuing punishment order dated 28.07.2022 (Annexure-A/1) has invocated the provisions of Article 311 (2) (b) of the Constitution of India and dismissed the applicant from service. For facility of reference, the relevant portion of the disciplinary order is as follows:-
"Whereas, on 12.07.2022 Sh. Issac Wilson Sam r/o 1680/2 Govind Puri Ext. Kalkaji, New Delhi made a written complaint stating therein nat he had visited to the residence of Mrs. Anu Saini w/o Ravinder Singh, r/o K-1-18/208 Sangam Vihar, Delhi 110080 whom he know since last four years. She was financially in a very bad situation as her husband is a kidney patient and is on dialysis since long time. She used to take money from him to get her husband dialysis done and his treatment. He used to help her out but in return she use to give him a cheque saying that she will sell her house and return his money.
Whereas, on 09.07.2022, when he went to her house she asked him to come into the relationship and made his video having relationship with her. After sometime suddenly three police people and one lady having BB Press I-Card come into the house saying that what is happening here in the house and asked him who is he. He told them that he has come to take his money from her which he has given her. Then Anu Saini said that he raped him and she displayed a video film in which he was in a compromising position with her. He tried to 15 OA No. 2162/2023 Item No. 37/C-II explain the police personnel's but they did not listen to him and forced him to pay an amount of Rs. 30 Lacs to remove all the charges against him and assured to delete the video from the mobile phone of Anu Saini. They forced him to transfer Rs. 5 Lacs to the bank account of Anu Saini. He found him in a trouble and to save his reputation. He transferred Rs. 5 Lacs in the bank account Number 626702010001208 of Anu Saini, Union Bank branch CR Park New Delhi. They asked him to pay the remaining Rs. 25 Lacs by ,11.07.2022 to save his repo. If he failed to do so, they will registered a case against him and put him behind the bars. He left from there and switched off his mobile phone out of fear. He was afraid of the threats given by those persons that they will viral his video. He discussed the matter with his known persons and on their advice he come to the police station for complaining. When he was on the way to police station, he received WhatsApp calls from mobile phone number 9718724506 and 9555333005. The WhatsApp calls have been recorded in his WhatsApp call log showing the pictures in the display profile of the caller. He has taken the screen shots of both the calls and enclosing the print out of the same along with his complaint.
Whereas, on the basis of written complaint of Sh. Issac Wilson Sam r/o 1680/2 Govind Puri Ext. Kalkaji, New Delhi in case FIR No. 439/22 u/s 384/389/120 B IPC PS Sangam Vihar registered on 12.07.2022 and the enquiry was entrusted to Sh. Vinod Narang, ACP Sub. Div. Mehrauli.
Whereas, during course of the preliminary enquiry it has emerged on record that HC (Exe) Ram Khillaree No. 1693/SD hatched a conspiracy with civilians and HC (Exe) Manoj Khokhar, No. 2030/SD to executed their plan to extort money. A copy of FIR, COpy of E-Chithha, fresh and detailed statement of the victim/complainant, DD entries have been collected from PS Sangam Vihar which prima facie, allegations leveled against both the police officers do substantiated.
Whereas, being a member of disciplined force they were responsible for protecting the life and property of the citizens of this country, but instead of discharging their duty honestly and sincerely they themselves indulged in corrupt practice, which is most abhorrable, most reprehensible and most unexpected being a member of a disciplined force. If the police man who is charged with 16 OA No. 2162/2023 Item No. 37/C-II sacred responsibility of upholding the rule of law indulging in such acts of crime and lawlessness it shatters the faith of the common man in the Government's law and order machinery. It also attracts immediate public attention and compels the authorities to take action. Such acts of police misdemeanour produce highly deleterious impact on the organization. Such misconduct directly erodes the basis of police functioning i.e. "Public Trust" the foundation on which police work is built. Without people's trust, the police as a service to people would become rather irrelevant. Reputation and image assiduously built on sustained and good teamwork, suffer irreparable damage when an individual member of the service trips and indulges in such an abhorrable act.
Whereas, the Govt. is always anxious and every effort is being made to root out corruption from the public service. After such act of serious misconduct if the defaulters Head Constables are allowed to be continued in Police force, it would be detrimental to public interest. The facts and circumstances of the case are such that it would not be reasonably practicable to conduct a regular departmental enquiry against the defaulter Head Constables, as there is a reasonable belief that the witness may not come forward to depose against them and possibility of misusing their official position cannot be ruled out. It is common experiences that due to terrorizing and intimidating the witnesses and complainant do not come forward to depose against the delinquents in the departmental enquiry and this kind of intimidation is a common tactic adopted by the unscrupulous police personnel. It also calls for great courage to depose against desperate persons and the task becomes more acute and difficult where the delinquents are police officials who may use their job to influence the statement/deposition of the witnesses.
Whereas, in the backdrop of the position explained in the foregoing paras, it is clear that the Head Constables are public servant with a criminal bent of mind and there is every possibility that no witness/complainant would come forward to depose against them in case a departmental enquiry is initiated against them. Under these set of compelling circumstances, Article 311 (2) (b) of Constitution of India is invoked in this case. It would be in the interest of general public and society as well as for the establishment of rule of law.
17OA No. 2162/2023 Item No. 37/C-II Therefore, I Benita Mary Jaiker, Deputy Commissioner of Police, South District, New Delhi hereby order to dismiss the defaulter HC Manoj No. 3020/SD (PIS No. 29100788) and HC Ram Khillaree, No. 1603/SD (PIS No. 28031818) from the force with immediate effect under Article 311 (2) (b) of Constitution of India. Their suspension period w.e.f. 12.07.2022 to the date of issue of this order is ordered to be treated as period Not Spent on Duty for all intents and purposes."
24. The applicant has also filed an appeal against the punishment order which was decided by the Appellate Authority on 13.06.2023 (Annexure-A/2). For facility of reference, it would be appropriate to quote the relevant portion of the appellate order, the same reads as under:-
"On the basis of a written complaint case vide FIR No. 439/2022 dated 12.07.2022 U/s 384/389/120B IPC, PS Sangam Vihar was registered and the appellants were arrested on 12.07.2022. A Preliminary enquiry was entrusted to Sh. Vinod Narang, ACP/Mehrauli vide order No. 8106/HAP (P-II)/SD dated 12.07.2022. During the course of the preliminary enquiry, it has come on record that Ex. HC (Exe) Ram Khilaree, No. 1693/SD hatched a conspiracy with Mrs. Anu Saini, Ms. Neeru Sharma, Jitender Sharma, Inamuddin and Ex. HC (Exe) Manoj Khokar, No. 2030/SD, to extort money from the complainant. Copy of the FIR, copy of E-Chithha, fresh and detailed statement of the victim/complainant, DD entries were collected from PS Sangam Vihar, which prima facie substantiated the allegations leveled against both the appellants.
The appellants being the members of disciplined force, were responsible for protecting the life and property of the citizens of this country, but instead of discharging their duty honestly and sincerely, they themselves indulged in criminal/corrupt practice, which was most abhorrable, most reprehensible and most unexpected being a member of a disciplined force. If the police man, who is charged with sacred responsibility of upholding the rules of law, indulges in such acts of crime and lawlessness, it shatters the faith of the common man in the Government's law and order 18 OA No. 2162/2023 Item No. 37/C-II machinery. It also attracts immediate public attention and compels the authorities to take action. Such acts of police misdemeanour produce highly deleterious impact on the organization. Such misconduct directly erodes the basis of police functioning i.e. "Public Trust"
the foundation on which police work is built. Without people's trust, the police as a service to people would become rather irrelevant. Reputation and image assiduously built to sustained and good teamwork, suffer irreparable damage when an individual member of the service trips and indulges in such an abhorrable act.
Further, even after such act of serious misconduct, if the appellants are allowed to continue in Police Force, it shall be detrimental to public interest. The facts and circumstances of the case were such that it was not reasonably practicable to conduct a regular departmental enquiry against the appellants, as there was a reasonable belief that the witness will not come forward to depose against them and possibility of misusing their official position cannot be ruled out. It is a common experience that due to terror and intimidation, the witnesses and complainant do not come forward to depose against the police personnel in the departmental enquiry and this kind of intimidation is a common tactic adopted by the unscrupulous police personnel. It also calls for great courage to depose against desperate persons and the task becomes more acute and difficult where the appellants were police officials who may use their job to influence the statement/deposition of the witnesses. In view of the position explained in the foregoing paras, it was clear that the appellants are public servant with a criminal bent of mind and there was very possibility that no witness/complainant would come forward to depose against them, in case a departmental enquiry was initiated against them. Under these set of compelling circumstances, Article 311 (2) (b) of the Constitution of India was invoked in this case and DCP/South District dismissed the appellants from service under Article 311 (2) (b) of the Constitution of India. Their suspension period from 12.07.2022 to 28.07.2022 was decided as period 'Not spent on duty' for all intents and purposes. Thereafter, the appellants filed the appeals before the undersigned against the punishment of dismissal from service awarded to them. The main pleas taken by th appellants in their appeals are that-
19OA No. 2162/2023 Item No. 37/C-II
1. The disciplinary authority has violated Delhi Police (Punishment & Appeal) Rules, as major punishment cannot be awarded except after a regular departmental enquiry. Moreover, major punishment of dismissal from service should be awarded for the act of grave misconduct rendering them unfit for service. It is not understood how grave misconduct was found to have been proved when the appellants were not even asked to show cause for any alleged misconduct. The copy of said preliminary enquiry report which was alleged to have been conducted by ACP/Mehrauli has not been made available to the appellants, which explained about hatching of a conspiracy with civilians and with own colleague. The case was registered on 12.07.2022 and arrest was affected on the same day. Then, when the preliminary enquiry was ordered and conducted, has not been made clear in the order of punishment.
2. That government servant must be given reasonable opportunity of show cause against the action proposed to be taken in regard to appellants. Appellants must have been given opportunity of showing cause against the action proposed to be taken in regard to appellants.
3. That the names of the appellants were not clear from contents of FIR, then how the 10 of the case succeeded in identifying both of the appellants. That no TIP was got conducted and the Hon'ble Court in the bail order mentioned that the name of present accused has nowhere been mentioned and his name has been disclosed by the co-accused, who is also a police official. The 10 was required to get the TIP of the present accused conducted by the complainant, however complainant was called in police station to identify the present accused, who was already present there. The conduct of 10 raises question on the credibility of the story of the prosecution. The complaint was directly made to ACP instead of SHO concerned, in violation of Section 154(1) Cr. PC. There was no endorsement made by ACP to SHO Sangam Vihar. Besides, as per FIR and endorsement by Inspr. Samarpal Singh (IO) there is no mention that complaint was ever marked to him by SHO/ACP for lodging FIR or taking necessary action.
4. That the complaint made by co-accused Ms. Anu Saini had already been given on 10.07.2022 vide DD 20 OA No. 2162/2023 Item No. 37/C-II No. 78A, PS Sangam Vihar, however, no action or any investigation was conducted regarding the said complaint, which pertained to grave allegations of rape against the said complainant in the present matter. SHO ignored such an important information lodged in Roznamcha and kept silent till 12.07.2022 without lodging FIR. Till date no FIR has been registered on the complaint of Ms Anu Saini despite a complaint to DCP/South District.
5. That in the bail orders dated 14.07.2022 and 16.07.2022, Ld. MM observed th there was no chance that appellants could run away from the investigation or trial the case. No notice u/s 41 Cr. PC was given by the 10 to appellants and rather th were arrested and sent to JC.
6. That FIR was registered on 11.07.2022 vide DD No. 0153-A at 21.40 His by Duty Officer/HC Panchu Ram vide FIR No. 445/2022 and investigation was handed over to Inspr. Samarpal Singh, ATO. Duty Officer had again lodged DD entry mentioning therein that there was typographical error and due to which FIR 445/2022 was written in place of FIR No. 439/2022. Two FIRs were lodged for one/same cause on 11.07.2022 and 12.07.2022. Why any diary/dispatch number was not marked confirming receipt of complaint from Issac Wilson. This all was done by said police officials with the sole intention to save Wilson from a Rape case.
I have carefully gone through the appeals filed by the appellants, as well as relevant record available on file and also heard them in OR on 11.04.2023. Reply to the above pleas taken by Appellants are as follows: -
1&2. There is no procedural lapse and legal flaw in this case. The appellants were dismissed from service under article 311(2)(b) of the Constitution of India without conducting formal departmental enquiry as per provisions of service rules and as such there is no violation of Delhi Police (Punishment & Appeal) Rules, as pleaded by the appellants. The appellants being member of Delhi Police were governed by the service rules applicable to them and their case was decided by the competent authority as per rules and procedure. A preliminary enquiry was conducted by Sh. Vinod Narang, ACP/Mehrauli vide order No. 8106/HAP (P-21 OA No. 2162/2023
Item No. 37/C-II II)/SD dated 12.07.2022 to find out the names and role of the accused.
3. Names and role of the appellants were ascertained during preliminary enquiry and also during investigation of the case. During preliminary enquiry Issac Wilson Sam has specifically mentioned in his statement dated 12.07.2022, the names of both the appellants as the persons who were involved in the incident in extorting money from him. Insp Samar Pal Singh, 10 of the case, had also mentioned in his report that the appellants played an active role in the crime. The appellants were also identified by the complainants during investigation the case. As regard to non-filing of complaint with the SHO, there is no restriction that a complaint can be made only to the SHO concerned. A complainant can use any channel for redressal of his grievances. Moreover, as per record, the complainant issac Wilson Sam had filed the complaint with ACP/Sangam Vihar on 11.07.2022 vide Dy No 303/LC and the same was marked to SHO/Sangam Vihar, who in turn marked it to insp. Samarpal Singh, insp/Law & Order, PS- Sangam Vihar for enquiry.
4. A case vide FIR No. 562/2022 dated 19.08.2022 PS Sangam Vihar has been registered on the complaint of Ms. Anu Saini and after completion of investigation chargesheet has been filed in the Court.
5. No comment is required to be given on the order of Hon'ble Court passed in a ba matter. However, the appellants were arrested in the case on 12.07.22 as per law.
6. There was a typographical error due to which FIR No. 445/2022 was written in place of FIR No. 439/2022. Hence, only one FIR No. 439/2022 U/s 384/389/120B IPC was registered on the complaint of Sh. Issac Wilson Sam. A DD Entry was also lodged by HC Panchu Ram vide GD No. 0002A dated 12.07.2023, highlighting typographic error in GD No. 153A dated 11.07.2023. The investigation is being done in an impartial manner.
Keeping in view of all the facts and circumstances of the case, I am of the firm view that the act of appellants attracted the provisions of Article 311 (2) (b) of the Constitution of India and made the appellants 22 OA No. 2162/2023 Item No. 37/C-II Ex. HC (Exe.) Ram Khilaree, No. 1603/SD (PIS No. 28031818) and Ex. HC (Exe) Manoj Khokhar, No. 3020/SD unfit for police service. Hence, I am not inclined to disagree with the decision of the Disciplinary Authority. Therefore, the appeals submitted by Ex. HC (Exe.) Ram Khilaree, No. 1603/SD (PIS No.28031818) and Ex. HC (Exe) Manoj Khokhar, No. 3020/SD, are hereby rejected. Let the appellants be informed accordingly."
25. The Disciplinary Authority and the Appellate Authority have come to the decision on the presumption that alleged offence has been committed by the applicant, so there is no need to conduct the departmental enquiry, these reasons cannot stand to the scrutiny of law for invoking the power under provision of Article 311 (2) (b) of the Constitution of India. It needs to be tested whether the reasons recorded in the impugned order for imposition of Article 311 (2) (b) of the Constitution of India are justifiable or the provisions of above mentioned Article of the Constitution of India are invoked only to avoid the disciplinary enquiry and get rid of the applicant in convenient manner. The Disciplinary Authority did not mention the reasonable grounds even when Preliminary Enquiry was ordered against the applicant. It could be seen from the appellate order that Appellate Authority had rejected the appeal in a mechanical manner without addressing specific submissions of the applicant and merely on presumptions that the allegation against the applicant is presumed to be proved and the witness might not have come forward to depose against the applicant. The Appellate Authority 23 OA No. 2162/2023 Item No. 37/C-II is simply assuming that the allegations against the applicant stands proved and this justification is good enough to invoke the Article 311 (2) (b) of the Constitution of India and dismiss the applicant. The Appellate Authority did not explore in the present case that majority of the witnesses are official witnesses. If preliminary enquiry is possible, then the departmental enquiry is also possible. Similarly, if the trial is possible then the departmental enquiry is also possible. However, both disciplinary authority and appellate authority did not make any efforts to conduct departmental enquiry and resorted to invocation of provision of Article 311 (2) (b) of the Constitution of India to impose the penalty of dismissal. This could be construed as strong bias of respondents against the applicant and their disdain approach to uphold Rule of Law. The respondents being Senior Police Officer holding high position are required to run the administrative decision making lawfully. A serious course correction is needed. Leaving this argument here for pondering of competent authority, we proceed further.
26. In the recent matter decided on 14.08.2024 by the Hon'ble High Court of Delhi in W.P. (C) No. 11276/2024 and CM Appl. 46705/2024. CM Appl. 46706/2024 in the matter of The Commissioner of Police & Ors. vs OM Prakash & anr., wherein the Commissioner of Police has been directed by the High Court of Delhi to look into the matters where Article 311 (2) (b) of 24 OA No. 2162/2023 Item No. 37/C-II the Constitution of India has been invoked by the police authorities and police personnel have been removed from the service. Only on presumptions and assumptions, without any material, coming to the conclusion or that it was not reasonably practicable to conduct regular departmental enquiry as witness might not come forward to depose against a police officer, respondents have rejected the appeal which could be construed as bad in law.
27. It is apparent that the Disciplinary Authority has assumed as if the allegations made in criminal case (FIR) already stand proved and thus with this presumptions, the present impugned order has been passed. Once the order of Disciplinary Authority is based on assumption as if the allegations made against the applicant already stand proved that too on the content of FIR, the same act is enough to vitiate the order of Disciplinary Authority as the same being bad in law as being based on assumptions, suspicion and surmises. Further, the Disciplinary Authority is assuming that the offence has been committed by the applicant. Under this assumption, the present order of Disciplinary Authority is being passed invoking Article 311 (2) (b) of the Constitution of India. There are circulars, judgment of judicial forums which clearly states that if the allegations are grave then more opportunity should be provided to the delinquent official to put forward his defense. The applicant has not been subjected to a 25 OA No. 2162/2023 Item No. 37/C-II departmental enquiry and merely on assumptions the disciplinary authority adopting a short cut and has invoked the power under Article 311 (2) (b) of the Constitution of India. The reasoning recorded by Disciplinary Authority is based on suspicion and surmises. There is no occasion for the disciplinary authority to record that in the present case departmental enquiry is not reasonably practicable. The usage of expression like as there is a "reasonable belief" itself shows that the reasoning is based on suspicion and surmises. The reasoning recorded by Disciplinary Authority for dispensing away the departmental enquiry has been dealt by this Tribunal in various OAs qua the same department i.e. Delhi Police. It is observed that most of witnesses are official witness in criminal case; once the criminal trial and preliminary enquiry are possible, then departmental enquiry is also possible. There is no material in the hand of Disciplinary Authority while passing the impugned order which could even suggest that witness or complainant will not come in departmental enquiry. There is no clear and robust evidence in front of respondent authority that the applicant has made any attempt to influence any witness thus making the order of disciplinary authority as bad in law.
28. The applicant is Head Constable in Delhi Police. It is a lower rank among the subordinate officer thus it is absolutely wrong to record that applicant is in any position to influence or 26 OA No. 2162/2023 Item No. 37/C-II threaten any witness. There is no admissible material or evidence before the authorities to conclude that the witness is threatened or intimidating or will not depose in departmental enquiry and thus reason recorded for dispensing the Departmental Enquiry under Article 311 (2) (b) of the Constitution of India are not tenable. As stated above, the applicant is only Head Constable in Delhi Police, if as per the allegations, the case of the department is so good on merit then come what may the applicant should be given a chance to put forward his defense in disciplinary enquiry. The preliminary enquiry was conducted by the respondents in order to construe that the allegations are true against the applicant that too at the back of the applicant. This fact clearly shows that Article 311 (2) (b) of the Constitution of India has been adopted as a convenient method in the present case. There is no material in hand of Disciplinary Authority while passing the impugned order which could even suggest that witness or complainant will not come in Departmental Enquiry. The impugned order is passed with the presumption that the allegations are proved against the applicant. In such a situation, Article 311 (2) (b) of the Constitution of India cannot be invoked on the same as it amounts to abuse of process of law.
29. In the public interest and even as per Rule of law, it was incumbent upon the authorities not to put to use Article 311 (2)
(b) of the Constitution of India in present case and to give 27 OA No. 2162/2023 Item No. 37/C-II opportunity to the applicant to put forward his defence in the departmental enquiry. The gravity of misconduct alleged in the present case cannot be a ground to invoke the power under Article 311 (2) (b) of the Constitution of India. The applicant as per rule of law must be given opportunity to put forward his defence in regular Departmental Enquiry until and unless the same is not reasonably practical. The reasons recorded in present impugned order to dispensing with the Departmental Enquiry are just not tenable in the eyes of law. Article 311 (2) (b) of the Constitution of India has been used as a short cut method. Admittedly in the present case a Preliminary Enquiry was conducted through ACP/Mehrauli, Delhi, the order of dismissal from service was passed by Disciplinary Authority, if preliminary enquiry is possible then disciplinary enquiry is also possible. The Hon'ble Tribunal in various judgments has allowed many petitions in respect of Article 311 (2) (b) of the Constitution of India, the same ground that if PE is possible then DE is also possible.
30. The reasoning to dispense away with the departmental enquiry cannot be based on suspicion and surmises and probability. Once the Disciplinary Authority records that there is a probability that complainant and witness are put on constant fear and threat for dispensing away with departmental enquiry the onus to establish that such situation prevails is upon respondents. The respondents have to make efforts to conduct departmental 28 OA No. 2162/2023 Item No. 37/C-II enquiry and imminent failure to hold the said departmental enquiry due to such actions of the applicant has to be established by the respondents. Therefore, while taking no action to conduct disciplinary enquiry and giving reasons of threat to witnesses etc., are the reasoning based on mere probability, suspicion and surmises. There was no material placed before the authority to come on to this conclusion and to invoke Article 311 (2) (b) of the Constitution of India.
31. The power under Article 311 (2) (b) of the Constitution of India has been invoked subsequent to a preliminary enquiry. The object of conducting the preliminary enquiry for invoking the power under Article 311 (2) (b) of the Constitution of India is being laid down in circular dated 11.09.2007. The reason for dispensing away with the departmental enquiry are on suspicion and surmises and no such material even through preliminary enquiry is being placed before any of the authorities on the basis of which the conclusion would be drawn whether the departmental enquiry is not practicable or even remotely supports the vague reasons recorded to dispense with the departmental enquiry. The cases in which preliminary enquiry is being conducted but in absolute violation of circular dated 11.9.2007 and straightaway the Disciplinary Authority passed an order under Article 311 (2) (b) of the Constitution of India is in violation of circular dated 11.9.2007 which was framed by department in 29 OA No. 2162/2023 Item No. 37/C-II pursuance of judgment of Hon'ble Tribunal in case of Suresh Kumar Vs. GNCTD in O.A. No. 2500/2006.
32. The Appellate Authority records that Preliminary Enquiry into the matter was conducted by ACP/Mehrauli, Delhi. The facts and circumstance of the case were such that it was not reasonably practicable to conduct a regular departmental enquiry, cannot be a ground to invoke the Article 311 (2) (b) of the Constitution of India. The copy of preliminary enquiry report is not supplied to the applicant nor the applicant has been part of the preliminary enquiry but on the contrary the law is that Preliminary Enquiry is possible then even the departmental enquiry is also possible and in such cases the Article 311 (2) (b) of the Constitution of India is not invoked. That the applicant is placing its reliance on the judgment of Hon'ble Tribunal decided on 23.04.2018 whereby the Hon'ble Tribunal after relying the judgment of Tarsem Singh, Hon'ble Apex Court whereby the Hon'ble Tribunal clearly stating "29. In Tarsem Singh's case Apex Court while allowing the appeals categorically observed " if a preliminary enquiry could be conducted, we fail to see any reason as to why a formal departmental enquiry could not have been initiated against the applicant. Reliance placed upon such a preliminary enquiry without complying with the minimal requirements of the principle of natural justice is against all canons of fair play and justice'. Accordingly, in the facts of the present OAs, we hold the issue in favour of the applicant. 30. In the circumstances and for the aforesaid reasons, all the OAs are allowed and the impugned orders are set aside with all consequential benefits. Since the applicant was under suspension as on the date of passing of the impugned orders, they 30 OA No. 2162/2023 Item No. 37/C-II would thus remain under suspension and the respondents shall take an appropriate decision regarding revocation or continuation of the same. The respondents shall proceed against the applicant departmentally, as per rules and the treatment of suspension period shall be dependent on the same. No costs. "
33. In the present case, when the P.E. is possible then even a Departmental Enquiry is also possible and thus the reasoning recorded by the Disciplinary Authority for dispensing with the D.E. is bad in law. The disciplinary authority did not even make the slightest possible effort to initiate a departmental inquiry as only after initiating a departmental inquiry a disciplinary authority can come to the conclusion that departmental inquiry is not reasonably practicable. Without making any efforts and only acting on the presumption and surmises, the disciplinary authority on its own, came to the conclusion that departmental inquiry is not practicable. No order for initiating the Departmental Enquiry was made by the department thus it is wrong to say that the present Departmental Enquiry is not reasonably practicable.
34. The disciplinary authority is not able to apply its mind that the power under Article 311 (2) (b) of the Constitution of India has to be exercised with a pre-condition. The pre-condition is that if a disciplinary enquiry is not reasonably practical and to arrive at such conclusions, the Disciplinary Authority has to record reasons. The present reasoning is based on the assumption that 31 OA No. 2162/2023 Item No. 37/C-II the applicant has committed the alleged crime and thus departmental enquiry is not required. The Disciplinary Authority on the presumption that the act committed by the applicant is so grave that it is practically not feasible to conduct enquiry, hence, came to conclusion that there is no need to conduct the departmental enquiry the scrutiny of law for invoking the power under Article 311 (2) (b) of the Constitution of India. The law on the subject is that graver are the allegation then more opportunity should be provided to the delinquent official to submit the defense. The gravity of the charge will never be an imminent factor in deciding whether power under Art 311 (2) (b) of the Constitution of India is to be invoked or not.
35. The present case is a case of absolute misuse of power vested in the Disciplinary Authority under Article 311 (2) (b) of Constitution of India and hence bad in law. The reasons recorded by the authorities to dispense away with the departmental enquiry do not withstand the scrutiny of law. The so called reasons recorded by the authorities in the impugned order to invoke the power under the Article 311 (2) (b) of the Constitution of India as being mentioned are only to avoid the departmental enquiry. It is a well settled law that without conducting any departmental enquiry, if the finding of guilt against the applicant has been arrived on to, the same act is enough to vitiate the order of the disciplinary authority. There is a finding of guilt against the 32 OA No. 2162/2023 Item No. 37/C-II applicant without conducting the Departmental Enquiry and further not even giving the opportunity to the applicant to put forward his defense and the same is enough to vitiate the order of the disciplinary authority. The authorities failed to consider that no substantial material has been collected to come on to a conclusion that witness will be discouraged to appear in a D.E. Thus the order of the authorities establishes non-application of mind, bias, arbitrariness and to adopt a short cut method of dismissing the applicant by invoking the power under Article 311 (2) (b) of the Constitution of India only keeping in mind the gravity of the allegations.
36. The applicant preferred an appeal against the punishment order of dismissal. The Appellate Authority rejected the appeal on 13.06.2023 by an absolutely non-speaking and mechanical order.
The Appellate Authority failed to apply its mind that the law quoted by the applicant in the statutory appeal clearly establishes that the reasons recorded for dispensing with the DE are not legally tenable in the eyes of law. The present case is not a case for invoking the power under Article 311 (2) (b) of the Constitution of India. The Hon'ble Apex court has laid down clearly that the gravity of the charge will not be a tilting factor in deciding whether a Departmental Enquiry is a reasonably practicable or not. The graver the charge the opportunity to defend him should be more.
33OA No. 2162/2023 Item No. 37/C-II
37. The applicant has placed reliance on the order dated 13.12.2023 passed by this Tribunal in the case of Dushyant Kumar Vs. Govt. of NCT of Delhi & Ors. The relevant portion of the same is reproduced below:-
"8. A catena of cases of the Orders/Judgments of the Hon'ble Supreme Court, Hon'ble High Court of Delhi and of this Tribunal on the issue as involved in the present case were also considered by the Division Bench (consisting one of us) while deciding the case of Ct. Sumit Sharma (supra).
9. Having regard to the above, we have carefully perused the impugned order(s), we find that nothing has been recorded in the impugned order(s) or shown to us that the applicant had ever threatened or harassed any of the witness (es) and/or the prospective witness (es). From the impugned orders, it is also evident that neither any effort was made by them to conduct an enquiry, nor there is any evidence that despite their best efforts, the respondents would not have been able to produce the witness (es) to lead evidence against the applicant. Further 18 OA No.1019/2023 nothing is brought on record that witness (es) has/have been threatened by the applicant or they were too scared of the applicant to come forward in the regular enquiry proceedings. It is also found that the disciplinary authority while passing the impugned order has very casually come to the conclusion that it would not be possible to conduct the departmental enquiry against the applicant, as no reason at all has been recorded in this regard and the applicant is guilty of committing grave misconduct and was involved in the aforesaid offences.
10. Having regard to the above, we are of the considered view that impugned orders passed by the respondents are not only in violation of the settled law but also of their own circular dated 11.9.2007. The reasons given by the respondents for dispensing with the enquiry are not in consonance with the law settled by the Hon'ble Supreme Court and Hon'ble High Courts and followed by this Tribunal in a catena of cases, including in one referred to hereinabove.34 OA No. 2162/2023
Item No. 37/C-II
11. In view of the aforesaid facts and circumstances of the present case, we are of the considered view that the instant OA is squarely covered by the common 19 OA No.1019/2023 Order/Judgment dated 10.2.2022 in Ct. Sumit Sharma (supra) and a batch of cases. Therefore, the present OA deserves to be partly allowed and hence, the same is partly allowed with the following directions:- (i) Orders dated 03.10.2022 (Annexure A/1) and dated 10.3.2023 (Annexure A/2) passed by the disciplinary and appellate authorities respectively are set aside; (ii) The applicant shall be entitled to all consequential benefits in accordance with the relevant rules and law on the subject; (iii) The respondents shall implement the aforesaid directions within eight weeks of receipt of a copy of this order; and (iv) However, the respondents shall be at liberty to initiate disciplinary proceedings against the applicant in accordance with the law.
12. However, in the facts and circumstances, there shall be no order as to costs."
38. The order of this Tribunal was challenged in the Hon'ble High Court of Delhi in W.P. (C) 2407/2024 in the matter of Govt. of Delhi and Ors. Vs. Dushyant Kumar, The Honble High of Delhi dismissed the Writ Petition being meritless. The relevant portion of the said judgment is as under:-
"14. In the light of the aforesaid, we have no hesitation in concurring with the Tribunal that the petitioners' decision to dispense with the enquiry was wholly unsustainable. The petitioners appear to have proceeded on an erroneous presumption that merely because a criminal case has been registered against the respondent, he was to be treated as guilty of the misconduct. No doubt, the respondent is a police officer, whose misconduct can never be condoned, but this would not imply that the principles of natural justice should be given a complete go by. As noted hereinabove, the petitioners have not given any valid reason for dispensing with the enquiry except for repeatedly stating that the respondent is guilty of serious misconduct. This course of action, in our view, is completely impermissible.35 OA No. 2162/2023
Item No. 37/C-II
15. Before we conclude, we may also consider the decision in Ajit Kumar Nag (supra) relied upon by the petitioners. We, however, find that instead of forwarding the case of the petitioners, the said decision supports the case of the respondent. It would, therefore, be apposite to refer to paragraph no.44 of the said decision, which reads as under:-
"44. We are aware of the normal rule that a person must have a fair trial and a fair appeal and he cannot be asked to be satisfied with an unfair trial and a fair appeal. We are also conscious of the general principle that pre- decisional hearing is better and should always be preferred to post-decisional hearing. We are further aware that it has been stated that apart from Laws of Men, Laws of God also observe the rule of audi alteram partem. It has been stated that the first hearing in human history was given in the Garden of Eden. God did not pass sentence upon Adam and Even before giving an opportunity to show cause as to why they had eaten the forbidden fruit. (See R. v. University of Cambridge [(1723) 1 Str 557 : 93 ER 698] .) But we are also aware that the principles of natural justice are not rigid or immutable and hence they cannot be imprisoned in a straitjacket. They must yield to and change with exigencies of situations. They must be confined within their limits and cannot be allowed to run wild. It has been stated:" „To do a great right‟ after all, it is permissible sometimes „to do a little wrong‟." [Per Mukharji, C.J. in Charan Lal Sahu v. Union of India [(1990) 1 SCC 613] (Bhopal Gas Disaster), SCC p. 705, para 124.] While interpreting legal provisions, a court of law cannot be unmindful of the hard realities of life. In our opinion, the approach of the Court in dealing with such cases should be pragmatic rather than pedantic, realistic rather than doctrinaire, functional rather than formal and practical rather than "precedential"."
16. We are, therefore, of the considered view that the petitioners have not only ignored the decisions of the Apex Court laying down the parameters for applicability of Article 311(2)(b) of Constitution of India, but have also ignored their own circulars dated 36 OA No. 2162/2023 Item No. 37/C-II 21.12.1993 and 11.09.2007. We, therefore, find no infirmity with the impugned order.
17. The writ petition being meritless is, accordingly, dismissed with all pending applications."
39. In the order dated 16.04.2024 passed in OA Nos. 542/2023 &591/2023 in the case of Deepak vs. Govt. of NCT of Delhi & Ors by this Tribunal. The Tribunal held as under:-
"20. In the present case, as apparent from the reasons recorded by the respondents in the impugned order, it is apparent that the respondents have arrived at the conclusion for dispensing with the regular inquiry due to the involvement of the applicants in a grave and serious case. The respondents have jumped to the conclusion that on account of serious allegations, the applicants have become ineligible to be continued in police force. There is no finding that the 24 applicants and/or anybody on their behalf have at any point of time even attempted to influence or coerce any of the witness. Even there is no finding that the applicants in the captioned OAs who are very junior officers under the respondents were in a position to influence the witnesses who are generally senior officials working in the Government of India and particularly in CBI. It is also nowhere recorded by the respondents as to how if not only preliminary inquiry was found possible, but also the criminal trial is possible in the said case FIR with the support of more than nineteen witnesses and at no point of time the prosecution has even felt that those witnesses are not likely to turn up and regular inquiry was not possible in the matter. It is undisputed that regular inquiry is a Rule whereas dispensing with the same is only an exception. Though the respondents have recorded that if regular inquiry is initiated, the same is liable to take a long time, however, no reason has been given for the same and it is apparent that such reasoning and finding is based on surmises and conjectures.
21. In view of the aforesaid, we find that the impugned orders are not sustainable in the eyes of law. Accordingly, the OAs are allowed with the following order(s) :- (i) impugned orders dated 10.08.2022 and 25.01.2023 are set aside. The applicants shall be 37 OA No. 2162/2023 Item No. 37/C-II reinstated in service forthwith. (ii) the applicants shall be entitled for all consequential benefits in accordance with relevant rules and instructions on the subject. (iii) the aforesaid directions shall be complied with by the respondents as expeditiously as possible and preferably within a period of eight weeks from the date of receipt of a copy of this order. (iv) the respondents shall be at liberty to initiate disciplinary proceedings against the applicants if they are so advised, of course in accordance with rules and instructions on the subject.
22. However, in the facts and circumstances of the case, there shall be no order as to costs."
40. In Writ Petition (C) No. 1258/2023 & CM App. No.4759/2023 in the case of Commissioner of Police Delhi Police & Ors. Vs. Manjeet; The Hon'ble High Court of Delhi vide its judgement dated 22.04.2024 has held as under:-
"9. A bare perusal of the aforesaid reasons contained in the dismissal order makes it clear that the primary reason for the petitioners not holding any enquiry against the respondent was that due to seriousness of the offence alleged to have been committed by him it would not be reasonably practicable to conduct a regular departmental enquiry. It also emerges that on the basis of the allegations levelled against the respondent in the FIR coupled with the findings of the preliminary enquiry, the petitioners presumed that the respondent was guilty of a serious offence and therefore deserve to be dismissed at the earliest. This in our considered view, as has been rightly held by the learned Tribunal, could not be treated as a ground to reach a conclusion that it was not reasonably practicable to hold an enquiry against the respondent. The petitioners have sought to dispense with the enquiry in such a casual manner and that too only on the basis of a perceived notion that the respondent being a police personnel, an enquiry against him was likely to be difficult on account of his influence. This course of action is clearly violative of Article 311(2)
(b) of the Constitution of India.38 OA No. 2162/2023
Item No. 37/C-II
10. We have also considered the decision in Dushyant Kumar (Supra) and find that in the said case, this Court had rejected a similar challenge by the petitioners to the Tribunal's quashing of a dismissal order passed after dispensing with the enquiry. In fact, this Court after considering the circulars dated 21.12.1993 and 11.09.2007 issued by the petitioners themselves, observed that despite there being a requirement to record cogent reasons to dispense with the enquiry, the petitioners were passing cryptic orders dispensing with the enquiry in the most mechanical manner.
11. No doubt, the respondent is a police personnel and any misconduct on his part is liable to be dealt with appropriately. This, however, does not imply that the petitioners could, on the basis of the gravity of the charges levelled against him, with an enquiry on absolutely vague grounds. As noted hereinabove, the petitioners have given no reason whatsoever in the impugned order for dispensing with the inquiry. The impugned order of dismissal proceeds on the basis that the respondent's guilt had already been proved in the preliminary enquiry. Furthermore, it is not as if the respondent has been let off without any departmental action being taken against him, as the learned Tribunal has already granted time to the petitioners to initiate departmental proceedings against him as per law.
12. For the aforesaid reasons, we find no reason to interfere with the impugned order. The writ petition being meritless is dismissed along with all applications.
13. Before we conclude, we are constrained to observe that in a large number of petitions filed by the Commissioner of Police which are coming up before this Court, we are finding termination orders are being passed by the petitioners by dispensing with departmental enquiries in a most mechanical manner without recording any valid reasons. We, therefore, direct that a copy of this order be placed before the Commissioner, Delhi Police to ensure that in future, enquiries are not dispensed with without assigning justifiable reasons."
39OA No. 2162/2023 Item No. 37/C-II
41. In other Writ Petition (C) No.4201/2024 on 20.03.2024 in case of Commissioner of Police and anr. Vs. Jagmal Singh. The Hon'ble High Court of Delhi has held as under:-
"10. From a perusal of the aforesaid, we find that the petitioners have proceeded to dispense with the enquiry against the respondent only because of the grave nature of allegations levelled against him and have simply observed that since the respondent had lowered the image of the police department and goodwill of a uniformed organisation, an exemplary punishment of dismissal ought to be imposed upon him so as to send a clear message to undesirable persons and to prevent reoccurrence of such crimes. In the light of the aforesaid, we find absolutely no reason to differ with the conclusion arrived at by the learned Tribunal that the dismissal order passed by the petitioners did not contain any justifiable reason whatsoever for dispensing with the enquiry. What clearly emerges is that the petitioners have proceeded on the premise that such police officers, who are charged with serious misconduct, should be immediately dismissed from service. This approach, in our view to dispense with an enquiry, would not meet the parameters laid down under Article 311(2) (b) of the Constitution of India.
11. At the cost of repetition, we may reiterate that merely because the respondent was a police personnel, would not entitle the petitioners to give a complete go- bye to the requirement of holding a departmental enquiry against him without recording any justifiable reasons as to why departmental enquiry could not be held against him.
12. For the aforesaid reasons, we find no infirmity with the impugned order. The writ petition, being meritless, is along with accompanying application, dismissed."
42. In the Special Leave to Appeal (C) No. 11681/2024 filed by the Commissioner of Police & Anr. Vs. Jagmal Singh, The Hon'ble Apex Court vide its judgment on 10.07.2024 has 40 OA No. 2162/2023 Item No. 37/C-II dismissed the said SLP and the judgment of Hon'ble Court of Delhi attained finality.
43. In another matter, the Hon'ble High Court of Delhi in W.P. (C) No. 5562/2024, CAV 181 /2024 CM Appl. 22929/2024 vide its judgment dated 23.04.2024 in the case of Commissioner of Police and ors. Vs. Sant Ram, the Hon'ble High Court of Delhi in paras 9 to 12 has held as under:-
"9. A bare perusal of the aforesaid reasons contained in the dismissal order makes it clear that the primary reason for the petitioners not holding any enquiry against the respondent was their presumption that the respondent would threaten or intimidate the complainant and other witnesses. The petitioners were further of the view that a prolonged enquiry would cause more trauma to the complainant. It is also evident from the dismissal order that the petitioners had, on the basis of the evidence led in the preliminary enquiry, already made up their mind that the respondent was guilty of serious misconduct and had lowered the image of the police force in the eyes of the public.
10. In our considered view, even though the charges against the respondent are very serious and the interest of the complainant deserves to be protected, it does not imply that the principles of natural justice as also the provisions of section 11 of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 should be given a complete go by on the basis of mere presumptions. Only because the respondent is a police personnel, would in our view, not be a ground either to presume that the witnesses will not come forward to depose against him in a regular enquiry or to hold him guilty without conducting the statutorily prescribed departmental enquiry and that too in a matter like the present where the complainant and the witnesses are also police personnel. In fact, what emerges is that on the basis of the report of the preliminary enquiry itself, the petitioners presumed that the respondent was 41 OA No. 2162/2023 Item No. 37/C-II guilty of serious misconduct and therefore deserved to be dismissed at the earliest. This in our considered view, as has been rightly held by the learned Tribunal, could not be treated as a ground to reach a conclusion that it was not reasonably practicable to hold an enquiry against the respondent. This course of action, in our considered opinion, was clearly violative of Article 311(2)(b) of the Constitution of India.
11. No doubt, the respondent is a police personnel and any misconduct on his part is liable to be dealt with appropriately. This, however, does not imply that the petitioners could, on the basis of the gravity of the charges levelled against him, dispense with the requirement of an enquiry on absolutely vague grounds. As noted hereinabove, the petitioners have given no reason whatsoever in the impugned order for dispensing with the inquiry. The impugned order of dismissal proceeds on the basis that the respondent's guilt had already been proved in the preliminary enquiry and had also been admitted by him. We therefore have no hesitation in agreeing with the learned Tribunal that the petitioners have dispensed with the enquiry only on the basis of a perceived notion that the respondent being a police personnel, would threaten the witnesses and holding of an enquiry would cause trauma to the complainant. Furthermore, we find that it is not as if the respondent has been let off without any departmental action being taken against him. As is evident from the impugned order, the learned Tribunal, while setting aside the dismissal order, has granted time to the petitioners to initiate departmental proceedings against him as per law.
12. For the aforesaid reasons, we find no reason to interfere with the impugned order. The writ petition being meritless is dismissed along with all accompanying applications.
44. In pursuance to the order of this Tribunal in OA No. 14/2018 titled as Sant Ram vs. Commissioner of Police and the judgment of the Hon'ble High Court of Delhi in W.P. (C) 5562/2024, CAV 181/2024 CM Appl. No.22929/2024, the respondents reinstated the services of the applicant Shri Sant 42 OA No. 2162/2023 Item No. 37/C-II Ram in that case. The order dated 26.07.2024 is reproduced as under:-
"In pursuance of judgment dated 06.02.2024 passed by the Principal Bench of Hon'ble Mr. R.N. Singh, Member (J) & Hon'ble Mr. Sanjeeva Kumar, Member (A), Central Administrative Tribunal, New Delhi in 0.A. No.14/2018 titled Sant Ram Vs. Commissioner of Police, Delhi & Ors. and judgment dated 23.04.2024 passed by the Hon'ble Ms. Justice Rekha Palli & Hon'ble Mr. Justice Saurabh Banerjee, High Court Delhi in W.P.(C) No.5562/2024, CAV 181/2024, CM Appl.22929/2024 -
Stay, CM Appl. 22930/2024 - Ex./LLOD titled Commissioner of Police & Ors. Vs. Sant Ram as well as opinion of Ms. Aishwarya Bhati, Ld. Addl. Solicitor General of India that "this is not a fit case for filing of SLP", the order of the disciplinary authority passed vide No.1833-1900/HAP/PTC (P-II) dated 01.08.2017 vide which Const. (Exe.) Sant Ram, No.324PTC (PIS No.28060573) was dismissed from the Delhi Police force under Article311(2(b) of Constitution of India deciding his suspension period as period not spent on duty and the order passed by the Appellate Authority vide No.106-66/SO/Jt. C.P/Trg, dated 03.11.2017 rejecting his appeal, are set aside. Accordingly, Const. (Exe.) Sant Ram, No. 324/PTC (PIS No.28060573) is hereby re- instated in service from dismissal with immediate effect without prejudice to the further departmental action to be taken against him in accordance with the law. He is deemed to be under suspension from the date of his dismissal as he had already been placed under suspension vide D.D.No.29-A/PTC/JK dated 22.07.2017 and formal issued vide order No.1738-70/HAP/PTC (DA-II) dated 26.07.2017. His dismissal/suspension period will be decided later on.
Let Const. (Exe.) Sant Ram, No.324/PTC (PIS No.28060573) be informed accordingly.
43OA No. 2162/2023 Item No. 37/C-II
45. In other judgment of the Hon'ble High Court of Delhi in Writ Petition (C) No. 1258/2023 & CM Appl. No. 4759/2023 in case of Commissioner of Police, Delhi vs. Manjeet, the following circular was issued by the Office of Commissioner of Police as under:-
"No. 174/C/HC/24 5110-60 DA-III/Court Cell/PHQ dated 13.05.2024 To The Deputy Commissioner of Police, All District including Units, New Delhi.
Sub: W.P. (C) No. 1258/2023 & CM Appl. No. 4759/2023 in the matter of Commissioner of Police, Delhi vs. Manjeet.
Memo Enclosed please find here with a copy of letter No. 10264/W/DHC/ Writs/D-9/2023 dated 26.04.2024 received from the Registrar General, Delhi High Court alongwith copy of the order dated 22.04.2024 wherein the Hon'ble has observed that " in large number of petitions filed by the Commissioner of Police which are coming up before the this Court, we are finding termination orders are being passed b y the petitioners by dispensing with departmental enquiries in a most mechanical manner without recording any valid reasons. We, therefore, direct that a copy of this order be placed before the Commissioner of Police, Delhi to ensure that in future, enquiries are not dispensed with without assigning justifiable reasons.
It is, therefore, requested that the aforementioned directions of the Hon'ble High Court of Delhi shall be taken into consideration before passing termination 44 OA No. 2162/2023 Item No. 37/C-II orders by dispensing with the departmental enquiries in future.
This issues with the approval of Commissioner of Police, Delhi.
(Hareesh H.P) Deputy Commissioner of Police Legal Division/ PHQ, Delhi"
Relying upon the circular issued on 11.09.2002, a similar order was passed by the respondents in the OA No. 1088/2021 as under:-
"The respondents, after considering the provisions of Article 311(2)(b) of the Constitution of India and the judgment of the Hon'ble Apex Court in the case of Tulsiram Patel (supra) and the Order(s)/Judgment(s) passed by this Tribunal have issued another circular dated 11.9.2007 (Annexure A/13 of the rejoinder filed in OA 467/2020). In the said circular, they have emphasized that the disciplinary authority should pass a speaking order(s) based and supported by material/facts on record for dispensing with prior inquiry and before passing such order(s), the disciplinary authority should be satisfied that it is not practicable to hold an inquiry in view of threat, inducement, intimidation, affiliation with criminals etc. and the disciplinary authority has no option but to resort to Article 311(2)(b) of the Constitution of India. The said circular dated 11.9.2007 reads as under:-
"CIRCULAR No. /2007 An analysis has been done by PHQ in 38 cases pertaining to the period between 1.1.2000 to 31.12.05 where action under Article 311 (2) (b) of the Constitution of India was taken against the defaulters. The analysis shows that out of the 38 cases, the action of the department has been upheld by CAT only in two cases 45 OA No. 2162/2023 Item No. 37/C-II and out of these two cases and only one case action was upheld by the Hon'ble High Court of Delhi and most of these cases have been remanded back in the Department by the Tribunal for initiating departmental inquiry.
Though some cases are still pending in the Hon'ble High Court for decision, in a majority of cases, Disciplinary Authorities have resorted to Article 311 (2)
(b) on assumptions and conjectures. No speaking orders were passed based on and supported by material/facts on record for dispensing with prior enquiry. Orders for dismissal were passed arbitrarily violating Article 311 and the principles of natural justice.
Henceforth, it has been decided that whenever any Disciplinary Authority intends to invoke Article 311 (2)
(b) of the Constitution of India, he must keep in mind the judgment in the case of UOI v. Tulsi Ram Patel, AIR 1985 SC 1416. Only in cases where Disciplinary Authority is personally satisfied on the basis of material available on file that the case is of such a nature that it is not practicable to hold an enquiry in view of threat, inducement, intimidation, affiliation with criminals etc. and keeping in view of specific circumstances of the case it is not possible that PWs will depose against the defaulter and disciplinary authority has no option but to resort to Article 311 (2) (b) should such an action be taken. Prior to such an order, a PE has to be conducted and it is essential to bring on record all such facts. It has also been decided that before passing on order under Article 311 (2) (b) of the Constitution of India, Disciplinary Authority has to take prior concurrence of Spl. CP/Admn.
This has the approval of C.P., Delhi.
Sd/-
(S.N. SRIVASTAVA) JT. COMMISSIONER OF POLICCE:
HDQRS,: DELHI""
46. The Hon'ble High Court of Delhi in WP(C )No. 11276/2024 and CM Appl. No.46705/2024, CM Appl. No. 46 OA No. 2162/2023 Item No. 37/C-II 46706/2024 in the matter of The Commissioner of Police & Ors. vs. OM Prakash & Anr. decided on 14.08.2024 has taken a serious cognizance of the order passed by the Disciplinary Authority in which Delhi Police resorting to invocation of Article 311 (2) (b) of the Constitution of India. For facility of reference, the relevant portion of above mentioned judgment is as follow:-
"20. Accordingly, finding no error in the impugned order passed by the learned Tribunal, the present petition is dismissed.
21. Before parting with this matter, we hereby direct the Commission of Police Delhi to personally look into such matters and take proper decision so that Courts/Tribunals are not burdened with a case where departmental inquiries can be initiated. We hereby make it clear that if such like petitions are filed in future wherein dismissal or suspension orders are passed without holding any enquiry without any plausible reasoning, certainly heavy cost will be imposed and that too, will be recovered from the Officer, who takes such type of unwarranted decision.
22. A copy of this order be transmitted to the Commissioner of Delhi Police for information and compliance."
47. Having regard to the above, we are of the considered view that impugned orders passed by the respondents are not only in violation of the settled law but also of their own circulars dated 11.09.2007 and 13.05.2024. The reasons given by the respondents for dispensing away with the enquiry are not in consonance with the law settled by the Hon'ble Supreme Court and Hon'ble High Court(s) and followed by this Tribunal in a catena of cases, a few of which are referred to hereinabove. 47 OA No. 2162/2023 Item No. 37/C-II
48. In view of the aforesaid facts and circumstances in the present case, we are of the considered view that the instant OA deserves to be partly allowed and the same is partly allowed with the following directions:-
(i) Orders dated 28.07.2022 (Annexure-A/1) of Disciplinary Authority and appellate order dated 13.06.2023 (Annexure-A/2) of the appellate authority are set aside;
(ii) The applicant shall be entitled to all consequential benefits in accordance with the relevant rules and instructions on the subject;
(iii) The respondents shall implement the aforesaid directions within eight weeks of receipt of a copy of this order; and
(iv) However, the respondents shall be at liberty to initiate disciplinary proceedings against the applicant in accordance with the law.48 OA No. 2162/2023
Item No. 37/C-II
(v) No order to costs. Pending MAs, if any, stand closed.
(Rajinder Kashyap) (R.N. Singh)
Member (A) Member (J)
/neetu/