Central Administrative Tribunal - Delhi
Vishram Meena vs Delhi Police on 24 April, 2025
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CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 1157/2023
Reserved on: 29.04.2025
Pronounced on: 21.05.2025
Hon'ble Mr. R.N. Singh, Member (J)
Hon'ble Mr. B. Anand, Member (A)
Vishram Meena (ST)
Ex Constable (Ex.) of Delhi Police,
PIS No.28060704
Aged about 33 years,
S/o Sh. Simbhu Dayal Meena,
R/o 2693, 3rd Floor,
Punjabi Basti, Sabzi Mandi,
Delhi-110007 - Applicant
(By Advocate: Mr. Anil Singal)
VERSUS
1. Delhi Police, through
Commissioner of Police,
New PHQ, Jai Singh Road,
New Delhi-110002
2. Joint C.P. (Eastern Range)
New PHQ, Jai Singh Road,
New Delhi-110002
3. DCP (North-East Distt.)
Through Commissioner of Police,
New PHQ, Jai Singh Road,
New Delhi-110002 - Respondents
-
(By Advocate: Mr. Pradeep Kr. Sharma)
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ORDER
Hon'ble Mr. B.Anand, Member (A):
By way of this OA, the applicant has sought the following reliefs under Section 19 of the Administrative Tribunals Act, 1985:-
"1. To quash and set aside Order of dismissal dt. 19.9.2019 & Appellate Order dt. 1.10.2021 and
2. To direct the respondents to reinstate the applicant into service with all consequential benefits including promotion/seniority and arrears of pay since the applicant is not able to get job despite his best efforts and is unemployed.
3. To award costs in favor of the applicant and pass any order or orders which this Tribunal may deem just & equitable in the facts & circumstances of the case."
2. The brief facts of the case are that the applicant, a Constable in Delhi Police, while being posted at PS/New Usman Pur, a PCR call was received in PS/New Usmanpur on 19.09.2019 in which a 16 years old girl complained that she was sexually assaulted by the applicant. In this connection, a case vide FIR No. 723/19 dated 19.09.2019 u/s 376(2)(a)(i)/376(2)(n) IPC & 6 POCSO Act, PS/New Usmanpur was registered against the applicant and consequently, he was arrested in this case. On this, a preliminary inquiry into the matter was got conducted through Addl. DCP-I/NE and from the facts which emerged during the preliminary inquiry, it was observed that the facts and circumstances of the case were so serious that it would not be reasonably practicable to conduct a regular departmental inquiry against the applicant as there was a reasonable belief that the witnesses may not come forward to depose against him owing to 3 his influential position. Therefore, keeping in view the sensitivity of the matter, the Disciplinary Authority, vide its order dated 19.09.2019, dismissed the applicant from the service by invoking Article 311(2)(b) of the Constitution of India. Against the order of the Disciplinary Authority (DA), the applicant had filed the appeal before the Appellate Authority (AA), who has also rejected the same by order dated 01.10.2021.
3. Learned counsel for the applicant contends that the applicant was falsely implicated in the aforesaid FIR and the disciplinary authority decided to dispense with the inquiry for the sole reason that the department's case against the applicant is very weak and will fail. He further contends that the department was unable to conclusively establish the false allegation against the applicant and Disciplinary Authority has nowhere recorded any evidence or reasons to conclude that holding of departmental inquiry is not practicable and how holding of the same is not practicable. Therefore the order passed by the Disciplinary Authority is liable to be set aside.
4. Learned counsel for the applicant also contends that seriousness of the charges cannot be the basis of invoking Article 311(2)(b) of the Constitution of India and dispense with the inquiry. Even if the DA did not feel it necessary to conduct regular DE, the AA could have considered whether there is a possibility of holding disciplinary inquiry at the time of deciding the present appeal as per the leading judgment of the Hon'ble Supreme Court in Tulsi Ram Patel's case.
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5. Learned counsel for the applicant contends that there is no reason given as to why the witnesses will not appear in the departmental inquiry against the applicant when the same witnesses can appear before the court to depose against the applicant. He submits that the disciplinary authority, without applying his mind to the condition precedent for invoking powers under Article 311(2)(b) that holding of inquiry is not reasonably practicable, has illegally dismissed the applicant in haste. Thus the order dispensing with the inquiry is liable to be set aside/quashed as per the judgment dated 13.09.2022 in OA No. 2629/2021 passed by the coordinate Bench of this Tribunal in the matter of Mohit Malik vs. Commissioner of Police & Ors.
6. In support of his claim, the applicant has also placed reliance upon the judgment of the Coordinate Bench of this Tribunal in the matter of Ct. Sumit Sharma vs. GNCT of Delhi & Ors. (OA No. 1383/2020 and batch) to contend that without sufficient grounds to be recorded in writing, the protection given to the pubic servant of hearing under Article 311 of the Constitution cannot be taken away by the respondents. In support of his claim, the applicant has further placed reliance on the recent judgment of the Tribunal in the case of Akash v. Commissioner of Police (OA No. 645/2024 with OA 579/2024), decided on 16.04.2025.
7. Learned counsel for the respondents vehemently opposed the submissions made by the applicant by filing his reply in which it is clearly submitted that a preliminary enquiry into the 5 matter was conducted in which the I.O. W/SI Mamta examined the victim minor girl in the presence of an NGO and after her medical examination, the above case was registered and the same was under investigation. The police investigation clearly established that the applicant visited the house of victim minor girl and took her from the house on the pretext of recording her statement in the Police Station with the criminal intention of committing rape.
8. Learned counsel for the respondents submitted that the facts and circumstances emerged during the preliminary inquiry into the matter were so serious that it would not be reasonably practicable to conduct a regular departmental inquiry against the applicant as there was a reasonable belief that the witnesses may not come forward to depose against him owing to his influential position. It also calls for a great courage to depose against the official person and the task becomes more acute and difficult where the police personnel could use his job to influence the statement/deposition of the witnesses. It was also highly probable that during the entire process of departmental proceedings, the complainant and the witnesses would be put under constant fear of threat to their person and property from the applicant. Under these circumstances, the respondents have decided that a regular departmental inquiry against the applicant was not practicably possible. In support of their contentions, the learned counsel for the respondents has placed reliance upon the following judgments which he elaborates in the succeeding paragraphs:-
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(i) Commissioner of Police vs. Om Prakash & Anr. (2024)313 DLT 61(DB);
(ii) ASI Rishi Pal Singh vs. Govt. of NCTD & Ors., OA No. 1293 of 2024;
(iii) Uday Kale vs. Union of India & Anr., OA No. 328/2018; and
(iv) Ct. Mukesh Kumar Yadav v. Govt. of NCT of Delhi, 2017 SCC Online Del 11169.
9. The first judgment relied upon by the leaned counsel for the respondents is the case of Commissioner of Police & Ors. v. Om Prakash & Anr., (2024)313 DLT 61(DB) and by referring to Para 16 thereof which reads as under:-
"16. In our considered opinion, the right approach should have been to consider the fact that proceedings in the FIR were pending and so, an opportunity should have been given to respondent No.1 to put forth his case by holding an enquiry. It is also relevant to note that the forged documents based upon which FIR in question was registered, were never placed before the competent authority."
10. The respondents' counsel claims that in the aforesaid case, FIR was registered based on documents, but those documents were not taken into consideration by the disciplinary authority but this has not happened in the case in hand. The learned counsel for the respondents submits that there is a big difference between the present OA and this judgment because the applicant in Om Prakash & Ors. (supra) was charged with involvement in the preparation of forged documents, and although a copy of the forged documents were placed on record by the respondents, the same was not considered by the Disciplinary Authority. However, he fairly submits that Para 21 of the judgment in Om Prakash (supra) reads as follows:-
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"21. Before parting with this matter, we hereby direct the Commissioner 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 where 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."
11. The second judgment relied upon by the learned counsel for the respondents is ASI Rishi Pal Singh (supra) (OA No. 1293/2024) which he states is identical to the present case in hand, and in support of his claim, drew our attention to Paras 4, 12 & 13 thereof which reads as follows:-
"4. ...This clearly shows that the conduct of ASI Rishi Pal Singh No.2536/N (PIS No.28790148) is of a notorious person of superlative degree and his continuance in the force is likely to cause further irreparable loss to the functioning and credibility of Delhi Police. He has acted in a manner highly unbecoming of a police officer. If he is allowed to continue in police force after this act of serious misconduct, it would be detrimental to public interest at large. The facts and circumstances of the case are such that it would not be practicable to conduct a regular departmental enquiry against the defaulter ASI, as there is reasonable belief that the witnesses may not come forward to depose against him. It is a common experience that due to terrorizing and intimidating, the witnesses and the complainant do not come forward to depose against the delinquent in the investigation/enquiry and this kind of intimidation is a common tactic adopted by the unscrupulous and criminal bent of mind police personnel. It also calls for great courage and minimize the scope to depose against the persons where the delinquent is a police official who may use his job to influence the statement/deposition of the witnesses.
In the backdrop of the position explained in the foregoing contents in this Order, it is crystal clear that the ASI is a public servant of indiscipline and there is every possibility of his influencing as well as intimidating the witnesses in the criminal case registered in this regard and also in case of enquiry initiated against him. It is under these given set of compelling circumstances, the rules under article 311(2)(b) of Constitution of India have been invoked in this case for the sake of justice. ASI Rishi Pal Singh No.2536/N has become a liability to the department and should not be allowed to continue in Police Department and 8 needs to be dismissed. It would be both in public interest as well as for the establishment of rule of law, which is expected by public at large...."
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12. A careful perusal of the foregoing decisions makes it clear that three ingredients are prerequisite to the sustainable application of clause (b) to the second proviso under Article 311(2) of the Constitution of India. They are: (1) the delinquency alleged should be such as would justify any one of the three punishments, viz., dismissal, removal, or reduction in rank; (2) the satisfaction of the competent authority that it was not reasonably practicable to hold a regular departmental enquiry; and (3) the competent authority must record the reasons of the above satisfaction in writing.
13. In paragraph 4 of this order, we have extracted the impugned order dated 2.4.2013 passed by the Deputy Commissioner of Police, North District, Delhi, as Disciplinary Authority, dismissing the applicant from service with immediate effect, by invoking Article 311(2) (b) of the Constitution of India. The determination by the said authority, when viewed dispassionately with reference to accusations made against the applicant, leaves no room for any doubt that the said authority was justified in concluding that the delinquency alleged against the applicant would substantiate the punishment of dismissal from service. The Disciplinary Authority has found that the conduct of the applicant is of a notorious person of superlative degree and his continuance in the force is likely to cause further irreparable loss to the functioning and credibility of Delhi Police. The applicant has acted in a manner highly unbecoming of a police officer. If he is allowed to continue in police force after this act of serious misconduct, it would be detrimental to public interest at large. The facts and circumstances of the case are such that it would not be practicable to conduct a regular departmental enquiry against the applicant, as there is reasonable belief that the witnesses may not come forward to depose against him. It is a common experience that due to terrorizing and intimidating, the witnesses and the complainant do not come forward to depose against the delinquent in the investigation/enquiry and this kind of intimidation is a common tactic adopted by the unscrupulous and criminal bent of mind police personnel. It also calls for great courage and minimize the scope to depose against the persons where the delinquent is a police official who may use his job to influence the statement/deposition of the witnesses. The applicant is a public servant of indiscipline and there is every possibility of his influencing as well as intimidating the witnesses in the criminal case registered in this regard and also in case of enquiry initiated against him. The applicant has become a liability to the department and should not be allowed to continue in Police Department and needs to be dismissed. It would be both in public interest as well as for the establishment of rule of law, which is 9 expected by public at large. While agreeing with the Disciplinary Authority, the Joint Commissioner of Police, Central Range, Delhi (Appellate Authority) has rejected the applicant's appeal, vide impugned order dated 2.7.2014, which has been extracted by us in paragraph 6 of this order. It has also been observed by the Appellate Authority that corruption eats into the vitals of the society. When the protectors of law turn into predators with impunity, the situation becomes critical and it is for the Disciplinary Authority to weed out such elements from a disciplined force, like Delhi Police, without delay. The facts of the case disclose that continuance of the appellant in Delhi Police, in than a reasonable presumption of guilt against him. The fact that the learned court has taken cognizance against him has also incriminating value. In a situation where the applicant and his accomplices have put the victims of their perpetration in such harrowing circumstances, the victims cannot be expected to depose freely against the appellant without fearing for their light of his extreme misconduct, is highly dangerous for the morale of the society at large and the hapless victims of the case in particular. Awarding him a lesser punishment would have been a travesty of justice. An unsuspecting citizen approaches a policeman with much hope, but incident like the one at hand tends to erode the faith of society in the law enforcement agencies. The very fact that the appellant had refused TIP has raised a more than a reasonable a reasonable presumption of guilt against him. The fact that the learned court has taken a cognizance against him has also incriminating value. In a situation where the applicant and his accomplices have put the victims of their perpetration in such harrowing circumstances, the victims cannot be expected to depose freely against the appellant without fearing for their safety. After going through the orders passed by the Disciplinary Authority and Appellate Authority, we have no hesitation in holding that all the three ingredients prerequisite for invocation of Article 311(2)b) of the Constitution of India are met in the instant case. Therefore, we find no scope to interfere with the impugned orders."
12. The third judgment relied upon by the learned counsel for the respondents is the decision of the Central Administrative Tribunal in the case of Uday Kale (supra) and more specifically to Para 26 thereof which reads as under:-
"26. In the totality of the facts and circumstances and in view of the law as settled by the Hon'ble Apex Court and also the Hon'ble High Court of Bombay, the OA deserves to be allowed. The orders passed by the DA and the AA are therefore quashed and set aside. It is further clarified that on setting aside the order of dismissal, applicant, shall be reinstated, however, he would be under deemed suspension and would be entitled to only such benefits which are 10 available to an employee who is under suspension. Respondents shall be at liberty to conduct a departmental enquiry against the applicant in respect of the alleged misconduct. The intervening period from dismissal to reinstatement shall be decided under provisions of FR after the conclusion of such enquiry. The applicant would be entitled to any back wages, except subsistence allowance as per rules."
13. In the fourth judgment of Ct. Mukesh Kumar Yadav (supra), relied upon by the learned counsel for the respondents, he particularly referred to Para 47 and 59 thereof which read as under:-
"47. The distinguishing features of Tarsem Singh (supra) from the facts of the present case are that the appellant Tarsem Singh was not caught red handed - like in the present case. Secondly, though the nature of the offence in which Tarsem was allegedly involved was also serious and heinous, in our view, the offence in which the petitioner was embroiled, was qualitatively even more serious and dangerous. To execute the offence of kidnapping for ransom in a pre- meditated and planned manner, by resort to impersonation as an officer of another investigating agency, namely, the CBI; the recovery of the arms from the vehicle in which the kidnapped person - who was no less than an Executive Engineer of the Jal Board i.e. a government servant was kidnapped for ransom, unquestionably exhibits a desperate and scheming mind. It also reflects the extent to which the petitioner was prepared to go to execute his plan, and achieve his objective. Thirdly, in Tarsem Singh (supra), even though the FIR was registered in view of the serious allegations made against him, even the charge-sheet was not eventually filed against the appellant Tarsem Singh in the said FIR lodged against him under Section 377 IPC. Thus, upon investigation, even a prima facie case was not found to have been made out. Fourthly, the disciplinary inquiry was dispensed with by the disciplinary authority on the premise that there was "no need" of a regular departmental inquiry, and not on the premise that it was not reasonably practicable to hold such an inquiry. The appellate authority rejected the appeal of Tarsem Singh by observing that, "the appellant is guilty of gravest acts of misconduct proving complete unfitness for police service........". Thus, the appellate authority proceeded on the assumption that the appellant was "guilty"
of gravest act of misconduct when, as a matter of fact, even the charge-sheet was not filed by the police, eventually. The Inspector General of Police had also proceeded on the same basis, in view of the preliminary inquiry report. It was only the Inspector General of Police who recorded in his order, for the first time, that it was not reasonably practicable to hold a regular inquiry, since there was every likelihood that one of the witnesses may come forward to depose against the petitioner. Even this reason was belied by the fact that witnesses were examined in the preliminary inquiry, which formed the basis of the appellant's dismissal.
59. We cannot lose sight of the fact that the impugned order was passed by a high ranking police officer, namely, the Deputy 11 Commissioner of Police (Crime and Railways), Delhi. The opinion formed and assessment made by high ranking police officers-who have risen in rank over the years, cannot be lightly brushed aside, particularly, when there is no material to suggest to the contrary i.e. that it would not be practically reasonable to hold an inquiry against the delinquent police official. As it turns out, the said opinion/assessment has been proved to be entirely well founded since the complainant, the victim and other witnesses turned hostile in the criminal trial against the petitioner and the co-accused Constable Ajeet Singh. As it is said "The proof of the pudding lies in its eating". What better evidence or material could there be to justify the opinion/assessment made by the competent authority with regard to the impracticability of holding an enquiry against the petitioner, then to demonstrate that, as a matter of fact, in the criminal trial, the victim and the witnesses turned hostile and did not support their earlier statements made against the accused persons, including, the petitioner."
14. We have heard the learned counsel for the parties and with their assistance, perused the pleadings available on record.
15. We have examined the two judgments relied upon by the learned counsel for the applicant passed in the case of Akash (supra) (OA No.645/2024 with OA No. 579/2024) and another in Ct. Sumit Sharma (supra) (OA No. 1383/2020 with batch), in both of which one of us (Mr. R.N. Singh) was a Judicial Member. These two judgments comprehensively deal with the developments and landmark judgments of the Hon'ble High Court of Delhi as well as Apex Court and are fairly of recent vintage.
16. The first judgment on which the learned counsel for the applicant, is relying upon is the case of Akash (supra) in which we are reproducing the following paragraphs as hereunder as they best capture our thoughts on the subject:-
"17. 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 12 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 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 towards 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. Earlier also while deciding other matters we have pointed out that a serious course correction is needed in the respondent Department while handling such cases and it is for their betterment if they take effective steps in that direction. We need not further ponder upon this point and leave it here.
18. In a 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 Hon'ble High Court of Delhi to look into the matters where Article 311 (2) (b) of 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 that it was not reasonably practicable to conduct regular departmental enquiry as witness might not come forward to depose against a police officer the appeal which could be construed as bad in law.
19. 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 issued. 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 and being based on assumptions, suspicion and surmises. Further, the Disciplinary Authority is assuming that the offence has been committed by the applicant and 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 state that if the allegations are grave then more opportunity should be provided to the delinquent official to 13 put forward his defense. The applicant has not been subjected to a 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.
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21. ...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 away 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. It is not known as to why DE which was ordered in this case was not conducted and respondents suddenly decided to invoke provisions of Article 311 (2) (b) of the Constitution of India.
22. 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 as a reason to dispense away with departmental enquiry, the onus to establish that such situation prevails is based on the efforts made by them to conduct departmental enquiry and imminent failure to hold the said departmental enquiry due to such actions of the applicant. Therefore, on the one hand taking no action to conduct disciplinary enquiry and while on the other citing the imaginary reasons of giving threat to witnesses etc., are the reasoning based on mere probability, suspicion and surmises and cannot be attached any credence. No material is placed before the authority to come to the conclusions that Departmental Enquiry is not possible and invocation of Article 311 (2)
(b) of the Constitution of India is the only solution available to the respondents.
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24. The decision of the Disciplinary Authority dispensing away with the Departmental Enquiry is bad in law. As also stated above, the Disciplinary Authority did not even make the slightest possible 14 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."
17. The second judgment on which the applicant is relying upon is the matter of Ct. Sumit Sharma (supra) in OA No. 1383/2020 in which one of us (Mr. R.N. Singh), was a Judicial Member and was the author of that judgment wherein all the developments regarding applicability of Article 311(2)(b) and its misuse by the Delhi Police to circumvent the necessity for conducting a disciplinary proceeding has been dealt with in detail and states that his case is squarely covered by this judgment. The relevant portion of the said judgment in the above OA No. 1383/2020 reads as under:-
"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."
18. Although the respondents' counsel has relied upon the judgment in the case of Om Prakash (supra), particularly in Para 9 to state that the case of Om Prakash is not relevant in the present case because the issue therein involved preparation of forged documents which were not taken into consideration by the Disciplinary Authority, but in the case at hand, there was a clear cut instance of juvenile girl being sexually assaulted by the 15 applicant herein. However, the practice of invoking Article 311(2)(b), without taking into recourse to disciplinary proceedings, is deprecated in Om Prakash's case (supra) as seen hereunder:-
"18. ...This Court in the facts of the said case held that except writing an essay on corruption by police, nothing has been stated in the said dismissal orders on the basis whereof the concerned authority arrived at a satisfaction that it would not be reasonably practicable to hold Departmental Enquiry against the respondents.
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21. Before parting with this matter, we hereby direct the Commissioner 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 enquiries 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."
Therefore, reliance placed on Om Prakash's case (supra) by the learned counsel for the respondents to show us the difference that Om Prakash involved certain documents albeit forged, the present case does not involve documents, is not valid.
19. It is noticed that the respondents have dispensed with the inquiry on the presumption that the alleged offence has been committed by the applicant. But the reasons adduced by the disciplinary and appellate authorities in their orders cannot be tested on the scrutiny of law for invocation of power conferred under Article 311(2)(b) of the Constitution of India.
20. What is required to be tested in this case is whether the reasons recorded in the impugned order for invocation of Article 311(2)(b) are justifiable or the provisions under Article 311(2)(b) 16 have been invoked in order to avoid disciplinary inquiry. It is seen that the DA in its order did not mention cogent and reasonable grounds even when Preliminary Enquiry was ordered against the applicant. Even the Appellate Authority had rejected the appeal of the applicant in a mechanical manner without addressing the submissions of the applicant and merely on presumption that the allegation against the applicant is presumed to be proved.
21. In this context, we have placed reliance upon the judgment of the Hon'ble Supreme Court in the case of Union of India & Anr. v. Tulsiram Patel, (1985)3 SCC 398, the relevant para of which reads as under:-
"130. The condition precedent for the application of clause (b) is the satisfaction of the disciplinary authority that "it is not reasonably practicable to hold" the inquiry contemplated by clause (2) of Article 311. What is pertinent to note is that the words used are "not reasonably practicable" and not "impracticable". According to the Oxford English Dictionary "practicable" means "Capable of being put into practice, carried out in action, effected, accomplished, or done; feasible".
Webster's Third New International Dictionary defines the word "practicable" inter alia as meaning "possible to practice or perform: capable of being put into practice, done or accomplished: feasible". Further, the words used are not "not practicable" but "not reasonably practicable". Webster's Third New International Dictionary defines the word "reasonably" as "in a reasonable manner: to a fairly sufficient extent". Thus, whether it was practicable to hold the inquiry or not must be judged in the context of whether it was reasonably practicable to do so. It is not a total or absolute impracticability which is required by clause (b). What is requisite is that the holding of the inquiry is not practicable in the opinion of a reasonable man taking a reasonable view of the prevailing situation."
22. In view of the above decision of the Hon'ble Supreme Court, the Disciplinary Authority is not only required to record reasons, but the reasons recorded should be such that they would show 17 whether the inquiry is practicable. It is seen that the complainant in this case has deposed in the criminal case. The proceedings in the departmental case and criminal case are two separate and independent proceedings. In a criminal case, the onus of establishing the guilt of the accused is on the prosecution and if he fails to establish the guilt beyond reasonable doubt, the accused is assumed to be innocent, while the strict burden of proof required to establish guilt is not required in a disciplinary proceedings and preponderance of probabilities is sufficient. Therefore, in the present case where evidence is available, the complainant has come forward to record his statement in criminal proceedings. In the preliminary inquiry, the applicant is alleged to have raped a minor girl. Therefore, the other witnesses are also available. As such, there is no reason not to hold inquiry. It cannot be said that it is not reasonably practicable to hold inquiry. The entire evidence is readily available therefore, the enquiry should have been held.
23. Hon'ble Supreme Court in Tarsem Singh (supra), after noting clause 2 of Article 311 of the Constitution of India in para 10 had held that a constitutional right of a delinquent cannot be dispensed with lightly. It was held in the said judgment as under:-
"10. It is now a well settled principle of law that a constitutional right conferred upon a delinquent cannot be dispensed with lightly or arbitrarily or out of ulterior motive or merely in order to avoid the holding of an enquiry. The learned counsel appearing on behalf of the appellant has taken us through certain documents for the purpose of showing that ultimately the police on investigation did not find any case against the appellant in respect of the purported FIR lodged 18 against him under Section 377 Indian Penal Code. However, it may not be necessary for us to go into the said question.
11. We have noticed hereinbefore that the formal enquiry was dispensed with only on the ground that the appellant could win over aggrieved people as well as witnesses from giving evidence by threatening and other means. No material has been placed or disclosed either in the said order or before us to show that subjective satisfaction arrived at by the statutory authority was based upon objective criteria. The purported reason for dispensing with the departmental proceedings is not supported by any document. It is further evident that the said order of dismissal was passed, inter alia, on the ground that there was no need for a regular departmental enquiry relying on or on the basis of a preliminary enquiry. However, 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 appellant. Reliance placed upon such a preliminary enquiry without complying with the minimal requirements of the principle of natural justice is against all canon of fair play and justice. The appellate authority, as noticed hereinbefore, in its order dated 24.6.1998 jumped to the conclusion that he was guilty of grave acts of misconduct proving complete unfitness for police service and the punishment awarded to him is commensurate with the misconduct although no material therefor was available on record. It is further evident that the appellate authority also mis-directed himself in passing the said order in so far as he failed to take into consideration the relevant facts and based his decision on irrelevant factors."
24. It is also seen that recently, the Hon'ble High Court of Delhi in the matter of The Commissioner of Police & Ors. v. OM Prakash & Anr. (CM Appl.46705/2024, CM Appl. 46706/2024), vide its order dated 14.08.2024, directed the Commissioner of Police to look into the matters where police personnel have been removed by invoking Article 311(2)(b) of the Constitution of India.
25. It is seen that the present case is a case of absolute misuse of power vested in the Disciplinary Authority under Article 311(2)(b) of the Constitution of India as the reasons recorded by the authorities to dispense with the departmental inquiry do not withstand the scrutiny of law. It is clear that the reasons adduced by the authorities while dismissing the 19 applicant from service are only to avoid regular departmental inquiry.
26. The appeal preferred by the applicant before the Appellate Authority against the order of dismissal was also rejected by the Appellate Authority without holding a regular departmental inquiry which is also against the law laid down by the Hon'ble Apex Court wherein it is clearly observed that the gravity of the charge will not be a tilting factor in deciding whether a departmental inquiry is reasonably practicable or not. The graver the charge against the applicant more is the necessitating that an opportunity to defend himself is given.
27. We have also placed reliance upon the order of the Tribunal dated 13.12.2023 in the case of Dushyant Kumar Vs. Govt. of NCT of Delhi & Ors. in which the Tribunal is of the considered view that "the 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. It will be instructive to reproduce the relevant portions of the judgment in Dushyant Kumar (supra) as hereunder:-
"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 20 (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.
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."
28. 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 Hon'ble 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 21 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.
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 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."
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29. We have seen that in a catena of judgments, like the decision of the Hon'ble High Court of Delhi in the case of Commissioner of Police & Anr. vs. Jagmal Singh affirmed by the Hon'ble Supreme Court in SLP No. 11681/2024, the use of Article 311(2)9B0 as a short cut to dispense with departmental inquiry has been deprecated.
30. It is also noticed that the decision of the Tribunal in the Sant Ram v. Commissioner of Police (OA No. 14/2018) which was affirmed WP(c) No. 5562/2024 in the case of Commissioner of Police & Ors. v. Sant Ram, has attained finality and the same has been implemented by the respondents vide their order dated 26.07.2024 reinstating the applicant into service.
31. It is seen that the respondents have also issued a circular dated 13.05.2024 in compliance with the judgment of the Hon'ble High Court of Delhi in WP(C) No. 1258/2023 in case of Commissioner of Police, Delhi v. Manjeet and in the said circular, it was clearly stated that "the aforementioned directions of the Hon'ble High Court of Delhi shall be taken into consideration before passing termination orders by dispensing with the departmental enquiries in future and the said circular was issued with the approval of the Commissioner of Police, Delhi.
32. We have noticed that in the case of Commissioner of Police & Ors. v. Om Prakash & Anr. (WP(C) No. 11276/2024), the Hon'ble High Court of Delhi has taken a serious cognizance 23 of the order passed by the Disciplinary Authority resorting to invocation of Article 311(2)(b) of the Constitution of India.
33. We have also come across a recent judgment passed in the matter of GNCTD & Ors. v. Amar Singh Chauhan decided on 20.09.2024 which reads as under:-
"1. Learned counsel for the petitioner, on instructions, submits that in view of judgment dated 14.08.2024 passed by this Court in W.P. (C) No. 11276/2024 as The Commissioner of Police & ors. v. OM Prakash & anr. petitioners may be allowed to withdraw the present petition.
2. Accordingly, the present petition is dismissed as withdrawn.
3. Petitioners are directed to examine all such petitions pending before this Court which are falling under similar circumstances and to file application to withdraw the said petitions, if they consider it necessary."
34. Having regard to the above, the 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 with the inquiry 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.
35. 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) The impugned order dated 19.09.2019 passed by the disciplinary authority and the order dated 24 01.10.2021 passed by the appellate authority are quashed and 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 law.
No order as to costs.
(B. Anand) (R.N. Singh) Member (A) Member(J) /lg/