Central Administrative Tribunal - Delhi
Kuldeep Singh vs Gnctd on 28 July, 2023
1 O.A. No.3058/2022
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No.3058 of 2022
Orders reserved on : 19.07.2023
Orders pronounced on : 28.07.2023
Hon'ble Mr. R.N. Singh, Member (J)
Hon'ble Mr. Sanjeeva Kumar, Member (A)
Kuldeep Singh
S/o Shri Chand Ram
R/o H.No.1224, Sector-9, VPO - Bahadurgarh City,
Bhadurgarh, Jhajjar, Haryana-124507
Age 52 years Group 'C'
ASI (Exe.) in Delhi Police
...Applicant
(By Advocate: Shri Sachin Chauhan)
VERSUS
1. Govt. of NCT of Delhi
through the Chief Secretary,
Govt. of NCTD
A-Wing, 5th Floor, Delhi Secretariat, IP Estate,
New Delhi-110002
2. The Commissioner of Police
Police Headquarters,
Jai Singh Road, New Delhi-110001.
3. The Addl. Commissioner of Police
Western Range, Delhi
Through the Commissioner of Police
Jai Singh Road, New Delhi-110001
4. The Deputy Commissioner of Police,
Outer District : New Delhi
Through the Commissioner of Police
Jai Singh Road, New Delhi-110001.
...Respondents
(By Advocate: Shri Amit Yadav)
2 O.A. No.3058/2022
ORDER
Hon'ble Mr. R.N. Singh, Member (J):
By filing the present OA under Section 19 of the Administrative Tribunals Act, 1985, the applicant has sought the following reliefs:-
"8.1 To set aside order dated 27.1.2022 whereby the extreme punishment of dismissal from service is inflicted upon the applicant and further set aside the order dated 21.09.2022 of Appellate Authority and to further direct the respondents to reinstate the applicant back in service with all consequential benefits including seniority and promotion and pay and allowance.
And/or Any other relief which this Hon'ble Tribunal Court deems fit and proper may also awarded to the applicant."
2. Pursuant to notice, the respondents have filed their reply opposing the claim of the applicant. The applicant has filed his rejoinder besides reiterating the averments contained in the OA, has refuted the contents of the reply filed by the respondents.
3. The brief undisputed facts of the case are that the applicant, who was appointed as a Constable in Delhi Police on 1.8.1989 and thereafter promoted as Assistant Sub Inspector (Exe.), was arrested on 18.1.2022 by 3 O.A. No.3058/2022 Central Bureau of Investigation, Delhi from Police Station Sultan Puri while taking bribe through a tea stall owner Bhagat Ram from one Mr. Dheeraj Kumar, as the applicant was the Investigating Officer of case FIR No.53/22 dated 12.1.2022 under Sections 354/354A/354B/506/34 IPC read with 9/10 POCSO Act, PS Sultan Puri. The said case was registered on the complaint of one Kumari Chetna D/o Sh. Karnel Singh, H.No. E-5/25, Sultan Puri, Delhi wherein the complainant alleged against her maternal Uncle Shri Sumit Kumar and cousin brother Sh. Sushil Kumar that when she was alone at home, her uncle came to the house and molested her and threatened to kill her if she refused. In view of the above, Shri Dheeraj Kumar (Brother of Sumit) filed a complaint before the Chief Anti Corruption Branch, CBI Delhi on 17.1.2022 against the applicant stating therein that her niece Chetna got registered a case against her brother Sumit Kumar and Nephew Sushil Kumar. The applicant, the Investigation Officer of the said case, demanded Rs.50,000/-for not arresting the Sumit Kumar and Sushil Kumar.
4 O.A. No.3058/20223.1 The verification of the aforesaid complaint was conducted by the CBI vide Memo dated 17.1.2022. The CBI Team consisting of VO Sh. Ashuthosh Tiwari, SI Aakash Srivastava, Shri Dheeraj Kumar (complainant) and the independent witness Sh. Deepak Kumar assembled at about 1600 hrs. on 17.1.2022 and in order to verify the allegation, new black color Sony make Digital Voice Recorder (DVR) and a sealed packed micro SD card make Nitro 16 GB memory care were arranged and the functioning of DVR was explained to all the persons. After ensuring the blackness of DVR, the said micro SD was taken out of its sealed packing and was inserted in the DVR in the presence of independent witness Shri Deepak Kumar. The DVR was set so as to recorded conversation get directly stored in the installed micro SD card. After ensuring the blackness of the memory card, the introductory voice of the above said independent witness was recorded in the said memory card through DVR. Thereafter a call was made to the applicant on his mobile number 8384001501 from complainant's mobile no.9911740347 to fix the meeting of the complainant and the suspected officer.
5 O.A. No.3058/20223.2 After listening the recorded conversation between the complainant and the suspected officer some relevant parts of conversation are as below:-
Complainant - 'VO KAH RAHE HAI ARREST KAR LIA TO MERA PAISA BHI JAYEGA.
Suspect- 'JAB YE KAR DIA JAB HUM SARE MAMLA BAHR KAR LENGE, KHANAPURTI TO AUR KYA RAH GAYA. THANE KE BAHAR KHANAPURTI KAR LENGE' Complainant - 'SIR KUCH KAM KAR LO 50 ME SE 40 KAR LO' Suspect - 'MANJUR HAI', Complainant "40", Suspect - MANJUR HAI AUR BTA' 3.3 From the above conversation, it was informed by the CBI that the demand of illegal gratification on the part of the applicant prima facie disclosed Commission of offence under Section 7 of POC Act, 1988 (as amended in 2018).
During verification, it was revealed that the applicant agreed to accept the bribe of Rs.40,000/- in two installments of Rs.20,000/- each for above mentioned purpose and the applicant demanded Rs.20,000/- as first installment on 18.1.2022 then he was arrested. 6 O.A. No.3058/2022 3.4 Keeping in view the above facts, the disciplinary authority vide impugned order dated 27.1.2022 (Annexure A-1) held that :
"it reveal that ASI (Exe.) Kuldeep Sing, PIS No.28891439 has committed a grave offence and serious misconduct. He did not perform his duty in a professional manner within the legal periphery. He has indulged himself in the most abominable act which is not expected from an official of a uniformed force. This requires a prompt and instant punitive action. Though the facts surfaced during enquiry, it has been observed that the facts and circumstances of the case were so serious that it will not be reasonably practicable to conduct a regular departmental enquiry against ASI (Exe.) Kuldeep Singh, PIS No.28891439, as there is a reasonable belief that the defaulter will influence the statements/deposition of witnesses. I am personally satisfied that that conducting a regular DE against ASI (Exe.) Kuldeep Singh will take a considerable long period and it is not practicably possible. Further, an extended departmental enquiry would only cause more trauma to the victim.
Therefore, I, Parvinder Singh, Dy. Commissioner of Police, Outer Distt., Delhi, hereby order to dismiss ASI (Exe.) Kuldeep Singh PIS No.28891439 from Delhi Police under provisions of Article 311 (2)(B) of Constitution of India from the date of his arrest i.e. 18.1.2022."
3.5 The applicant was released on regular bail vide order dated 23.2.2022 passed by the learned Shri Amit Kumar, Special Judge, PC, Act, CBI-04, Rouse Avenue Court, New 7 O.A. No.3058/2022 Delhi and a challan had been filed by the investigating agency and charges are yet to be framed. Thereafter the applicant filed an appeal dated 28.2.2022 against the aforesaid order of the disciplinary authority. When the said appeal of the applicant was not decided by the respondents even after expiry of six months, the applicant has filed OA 2506/2022 before this Tribunal, which was disposed of by this Tribunal vide Order dated 13.9.2022 with a direction to the respondents to decide the aforesaid appeal of the applicant in a time bound manner. Pursuant to the aforesaid order of this Tribunal, the applicant was called in O.R. on 21.9.2022 by the appellate authority and the appellate authority vide order dated 21.9.2022 rejected the said appeal of the applicant. Feeling aggrieved by the aforesaid orders of the disciplinary and appellate authorities, the applicant has filed the present OA.
4. During the course of hearing, Shri Chauhan, learned counsel for the applicant has submitted that having regard to the gravity of charge levelled against the applicant, extreme punishment of dismissal is inflicted upon the applicant by invoking the provisions of Article 311(2)(b) of the Constitution of India by the disciplinary 8 O.A. No.3058/2022 authority vide impugned order dated 27.1.2022 and the appeal preferred by the applicant against the aforesaid order of the disciplinary authority was rejected by the appellate authority by passing a non-speaking and mechanical order.
4.1 Learned counsel for the applicant has submitted that the similar issue as raised in the present OA had already been considered by this Tribunal while deciding the case of Sumit Sharma vs. Govt. of NCT of Delhi and others (OA No.1383/2020 and eight other connected cases) vide common Order/Judgment dated 10.2.2022 in which the applicants were also the officials of Delhi Police and they were also dismissed by the respondents by invoking their power under Article 311(2)(b) of the Constitution of India and this Tribunal held that the orders of dismissal were bad in law.
4.2 Learned counsel for the applicant has further submitted that admittedly in the present case an enquiry is being conducted and once a preliminary enquiry is possible then regular departmental enquiry is also possible. To substantiate his claim, learned counsel for 9 O.A. No.3058/2022 the applicant has placed reliance on the following orders/judgments:-
(i) OA No.2097/2019, titled Neeraj Kumar vs. Commissioner of Delhi Police and others, decided on 1.11.2019 by this Tribunal;
(ii) OA No.2867/2019, titled Jasmohinder Singh vs. Commissioner of Delhi Police and others, decided on 16.10.2020 by this Tribunal;
(iii) OA No.702/2019, titled Dharmender Singh Dangi vs. Govt. of NCTD and others, decided on 7.1.2021 by this Tribunal; and
(iv) OA No.1124/2019, titled Tara Dutt vs. GNCT of Delhi, decided on 17.6.2021 by this Tribunal. etc. 4.3 Learned counsel for the applicant has further submitted that on a plain reading of the order passed by the disciplinary authority, it is evidently clear that the same is based on an assumption that as if the allegations made in criminal case have already stand proved and once the order of the disciplinary authority is based on assumption and presumption, the same is not sustainable in the eyes of law. Learned counsel has further submitted that the observations of the disciplinary authority in the 10 O.A. No.3058/2022 impugned order that the facts and circumstances of the case were so serious that it will not be reasonably practicable to conduct a regular departmental enquiry against the applicant as there is a reasonable belief that applicant will influence the statements/ deposition of witnesses, is not supported by any cogent evidence or reason.
4.4 Lastly learned counsel for the applicant has submitted that besides the aforesaid orders/judgments, the case of the applicant is squarely covered by the common order/judgment dated 10.2.2022 in OA No.1383/2020 and other connected OAs, titled Sumit Sharma vs. Govt. of NCT of Delhi and others in which this Tribunal has very elaborately decided the issue. He has also submitted that recently also this Tribunal in OA No.1038/2017, titled Neeraj Kumar vs. Govt. of NCTD and others, decided on 27.4.2023, decided the similar issue in favour of the applicant therein and this decision also squarely applies to the applicant's case herein.
5. Per contra, Shri Amit Yadav, learned counsel for the respondents with the assistance of the counter reply, has submitted that keeping in view the facts as noted above, 11 O.A. No.3058/2022 the Disciplinary Authority has rightly dismissed the applicant from the service by invoking the provisions of Article 311(2)(b) of the Constitution of India and the appeal of the applicant was rightly rejected by the appellate authority after affording a personal hearing to the applicant. In support of the stand of the respondents, learned counsel for the respondents has placed reliance on the following decisions:-
(i) Chandigarh Administration vs. Ex. S.I. Gurdit Singh, reported in (1997) 10 SCC 430; &
(ii) WP(C) No.1309/2023, titled Manohar Lal vs. Commissioner of Police, decided on 2.2.2023 by the Hon'ble High Court of Delhi;
6. In rebuttal to the contentions and arguments advanced by the learned counsel for the respondents, learned counsel for the applicant has reiterated his above noted arguments and has submitted that the judgments referred and relied by the learned counsel for the respondents do not help the respondents. 12 O.A. No.3058/2022
7. We have considered the submissions made by the learned counsels for the parties and have also gone through the orders/judgments relied upon by them.
8. The issue as involved in the present case has already been decided by the Division Bench of this Tribunal by a common order/judgment in the case of Sumit Sharma (supra), in which one of us, namely, Shri R.N. Singh, is a Member. Paras 45 to 48 of which read as under:-
"45. In the cases in hand, it is evident that in most of the cases preliminary inquiry had admittedly been done and regular enquiry had been dispensed with on the ground of possibility of witnesses likely to be unduly harassed or pressurized by the delinquent(s). In all the case FIRs, chargesheet had been filed, list of witnesses had been filed, a few witnesses had been examined or after tiral the accused(s) had been acquitted. In a few cases, the reason for dispensing with the enquiry had been given that the material had come on record to prove the criminal acts of the applicants. The reason had been also of threat to discipline, integrity and morality of the entire police force. On perusal of the impugned orders, it is evident that either the authorities have passed the orders of dispensing with the enquiry on jumping to the conclusion that delinquency or guilt of the applicants as alleged in the case FIRs stood proved even without regular enquiry in the departmental proceedings or trial in the concerned learned court(s). In most of the cases, conclusion about delinquency and commission of the offence(s) by the applicant(s) had been arrived merely on the basis of the 13 O.A. No.3058/2022 preliminary inquiry report/investigation conducted by them and a copy of which had not been provided to them. In none of the aforesaid cases, there was any evidence/material before the authorities as evident from the impugned orders nor as such had been brought before us, to indicate that the applicants were having terror in their area and/or were having link with the terrorist(s) and they were involved in any case of espionage. Nothing has been recorded in the order(s) or shown to us that the applicant(s) had ever threatened or harassed any of the witness(es) and/or the prospective witness(es). There is no evidence or document to indicate that in view of the facts and circumstances of the case(s), any efforts was made to summon the witness(es) to lead the evidence against the applicant(s) or anything was found that on regular enquiry or by summoning the witness(es) the relation with foreign countries was likely to be adversely affected. In the impugned order(s), the respondents have not disclosed that any effort was made by them to conduct the enquiry nor there is any evidence that in spite of their efforts, they had not been able to produce the witness(es) to lead evidence against the applicant(s). Rather the respondents have themselves filed the final challan(s) with a list of witness(es) before the concerned learned Court(s) and in a few cases, the accused(s) had been acquitted as well. In a few cases, witnesses have been examined before the concerned learned Court(s). Moreover, co-delinquent in the cases of Neeraj Kumar (supra) and Ramesh Kumar (supra), the similar impugned orders have been set aside by the Tribunal and the orders of the Tribunal have also attained finality.
46. It is found that the authorities while passing the impugned orders have very casually come to the conclusion that it would not be possible to conduct the departmental enquiry against the delinquent(s) and there 14 O.A. No.3058/2022 being a possibility that witness(es) may not come forward to depose against the applicant(s). Such acts/orders of the respondents are not only in violation of the settled law but also of their own aforesaid circulars dated 21.3.1993 and 11.9.2007 as well. Hence, we are of the considered view that 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, a few of which cases are referred to hereinabove.
47. It cannot be in dispute that there must be zero tolerance towards corruption and misconduct in public service. However, without there being sufficient ground(s) to be recorded in writing, the protection given to the public servant of hearing under Article 311 of the Constitution cannot be taken away by the respondents. Our view is supported by the binding judicial precedents, referred to hereinabove.
48. In view of the aforesaid, we are of the considered view that the aforesaid OAs deserve to be partly allowed and the same are partly allowed with the following directions:-
(i) Order(s) passed by the disciplinary and appellate authorities in the aforesaid OAs are set aside with all consequential benefits to the applicants in accordance with the relevant rules and law on the subject; and
(ii) However, the respondents shall be at liberty to initiate disciplinary proceedings against the applicant(s) in accordance with the law."15 O.A. No.3058/2022
9. So far as reliance placed by the learned counsel for the respondents on the decision of the Hon'ble Supreme Court in the case of Chandigarh Administration (supra). In the said case, respondent - a Sub-Inspector was a terror in the area and was a very influential person. No person was likely to come forward to give any statement regarding the incident against him and therefore it was found that no purpose will serve to have any departmental enquiry against him. Hence, it was recommended that stern disciplinary action be taken against him, as reported by the DSP in the said case. But the applicant in the instant case was a Constable and there is no such kind of report against the applicant in the said case. As such, the instant case is distinguishable on facts. Further the said decision of the Hon'ble Supreme Court in the case of Chandigarh Administration (supra) had also been considered by this Tribunal while passing the common order/judgment in the case of Sumit Sharma (supra).
10. We have also gone through the judgment dated 2.2.2023 of the Hon'ble High Court of Delhi in the case of Manohar Lal (supra) on which the reliance has also been placed by the learned counsel for the respondents. In the 16 O.A. No.3058/2022 said case, under challenge was the order dated 29.11.2022 passed by this Tribunal in OA No.744/2020 whereby the Tribunal dismissed the OA filed by the said petitioner challenging the action of the respondents in dismissing him from service under Article 311(2)(b) of the Constitution of India. In para 15 of the judgment dated 2.2.2023, the Hon'ble High Court has recorded the reasons for dismissing the said Writ Petition. Para 15 of the judgment of the Hon'ble High Court of 2.2.2023 reads as under:-
"15. We are of the view that the learned Tribunal is justified in dismissing the petition for the reasons stated as under:
(i) The charges against the petitioner are of very serious nature.
(ii) The allegations which had already been reproduced above is that the petitioner, who was holding the position of constable along with two Sub-
Inspectors posted in the Special Cell of Delhi Police forcibly entered into a godown by breaking open the room where sandalwood logs were kept and loaded approx. 1355 Kg. of sandalwood logs into a tempo and took away the SIM card from the mobile phone of Guard Maniram.
(iii) That apart during the preliminary
inquiry it transpired that the
complainant / witness of the case was
severely traumatised by this egregious act of criminals, especially the police personnel involved therein due to their 17 O.A. No.3058/2022 close association with hardened criminals.
(iv) A charge sheet has been filed against the petitioner in connection with FIR No.390/2017 registered at PS Bhalswa Dairy, showing a prima facie case against the petitioner.
(v) In the appeal filed by the petitioner, he has not denied that he is not involved in the alleged offence.
(vi) Insofar as the plea of the learned counsel for the petitioner that there is another witness, i.e. the nephew of the guard namely Mohit is concerned, we note that the FIR records that the guard Maniram and his nephew Mohit were cooking food when he heard a knock at the door, pursuant to which Maniram opened the door to see a person in a police uniform. Further, it records that at 06:45 A.M. on the next day when the contractor had reached the premises, the guard's nephew Mohit arrived and stated that he had slept on the terrace of another godown, on being scared of the men who had come wearing police uniform. Suffice to state, the nephew of the guard being a child of 11 years upon being scared of the men in police uniform, had left the godown and went to the terrace of another godown. If that is indeed the case, it is not known as to how much weight his deposition may carry. That apart, there may arise an apprehension that the charged persons including the petitioner being police officer who are well versed in criminal proceedings, may try to intimidate or influence this witness as well, more so, when he is a minor."
18 O.A. No.3058/2022
11. However, on a perusal of the impugned orders, 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) and further there is no evidence or document to indicate that in view of the facts and circumstances of the case, any efforts was made by the respondents to summon the witness(es) to lead the evidence. It is also not the case of the respondents that resorting to regular enquiry, the relation with foreign countries was likely to be adversely affected. From the impugned orders, it is evidently clear that neither any effort was made by the respondents to conduct the enquiry nor there is any evidence that in spite of their best efforts, the respondents had not been able to produce the witness(es) to lead evidence against the applicant and further nothing is brought on record that witness(es) has/have been threatened by the applicant or they are 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 the facts and circumstances of the case were so serious that it will not 19 O.A. No.3058/2022 be reasonably practicable to conduct a regular departmental enquiry against ASI (Exe.) Kuldeep Singh, PIS No.28891439, as there is a reasonable belief that the defaulter will influence the statements/deposition of witnesses.
12. In view of the aforesaid, the reliance placed by the respondents on the decision of the Hon'ble High Court of Delhi in Manohar Lal (supra) is of no help to them as in the said case during the preliminary inquiry, the complainant/witness of the case was severely traumatised by the egregious act of criminals, especially the police personnel involved therein due to their close association with hardened criminals and in the appeal filed by the petitioner therein, he has not denied that he is not involved in the alleged offence of robbery-cum-burglary, which is not the case in hand.
13. Keeping in view the above observations, such acts/orders of the respondents are not only in violation of the settled law but also of their own aforesaid instructions/ dated 11.9.2007. Hence, we are of the considered view that reasons given by the respondents for dispensing with the enquiry are not in consonance with 20 O.A. No.3058/2022 the law settled by the Hon'ble Supreme Court and Hon'ble High Courts and followed by this Tribunal in a catena of cases, a few of which cases are referred to herein above.
14. Having regard to the aforesaid facts and circumstances of the present case, we are of the considered view that this case is squarely covered by a catena of cases relied on behalf of the applicant, including the common Order/Judgment dated 10.2.2022 in Sumit Sharma (supra) and a batch of cases as well as order dated 27.4.2023 in Neeraj Kumar (supra). Therefore, the present OA deserves to be partly allowed and the same is partly allowed with the following directions:-
(i) Orders dated 27.1.2022 (Annexure A-1) and dated 21.9.2022 (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 direction within eight weeks of receipt of a copy of this order; and 21 O.A. No.3058/2022
(iv) However, the respondents shall be at liberty to initiate disciplinary proceedings against the applicant in accordance with the law.
15. However, in the facts and circumstances, there shall be no order as to costs.
(Sanjeeva Kumar) (R.N. Singh)
Member (A) Member (J)
/ravi/