Central Administrative Tribunal - Delhi
Rajesh Kumar vs Comm. Of Police on 9 October, 2018
1 OA No.233/2018
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI
O.A No.233/2018
Reserved On:07.09.2018
Pronounced on:09.10.2018
Hon'ble Mr. V. Ajay Kumar, Member (J)
Hon'ble Mr. A.K. Bishnoi, Member (A)
Rajesh Kumar
S/o Late Shri Dal Chad Verma
R/o Flat No.112, Gomukh Apartment,
Koushambi, Ghaziabad, UP.
Aged about 50 years
(Group 'C')
(Dismissed ASI/Delhi Police) ... Applicant
(By Advocate: Shri Ajesh Luthra, Advocate)
Versus
1. Commissioner of Police
PHQ, MSO Building, I.P. Estate
New Delhi.
2. Jt. Commissioner of Police
(Armed Police),
New Police Lines,
Kingsway Camp, Delhi.
3. Deputy Commissioner of Police,
3rd Bn. DAP, Administrative Block,
Vikas Puri Police Complex,
New Delhi-110018. ... Respondents
(By Advocate: Ms. Harvinder Oberoi)
ORDER
By Mr. V. Ajay Kumar, Member (J) The applicant, an Assistant Sub Inspector in the respondent- Delhi Police, filed the OA questioning the legality and validity of the Annexure A-1 order dated 21.10.2017, whereunder he was dismissed from service under Article 311(2)(b) of the Constitution of 2 OA No.233/2018 India and that in treating the suspension period from 20.10.2017 to the date of the said order, as not spent on duty and the Annexure A-2 order dated 19.12.2017, whereunder his appeal was rejected.
2. The impugned dismissal order, explained the circumstances, which led to the dismissal of the applicant, in detail, and the same reads as under:-
"On 07.10.2017, an outstation command, comprising of ASI (Exe.) (SGD) Rajesh Kumar, No. 6848/DAP (PIS No. 28891679), Head Const. (Exe.) Jeevan Chander No. 7178/DAP (PIS No. 28980011), Head Const. (Exe.) Julian George No. 2462/DAP (PIS No. 28951089), Const. (Exe.) Nitin Kumar, No. 2599/DAP (PIS No. 28092708) Const. (Exe.) Keshav Kumar, No. 7367/DAP (PIS No. 28070347), Const. (Exe.) Dharmender, No. 6996/DAP (PIS No. 28070999) and Const. (Exe.) Pushpendra Singh No. 2874/DAP (PIS No. 28092822) was detailed to produce High Risk UTP Sukesh Chandershekar S/o Vijayan R/o Central Jail No. 1, Delhi before the Hon'ble Courts at Mumbai, Coimbatore and Bengaluru on 09.10.2017, 12.10.2017 and 16.10.2017 respectively. After proper briefing, the said Escort Guard went to Central Jail from where they took High Risk UTP Sukesh Chandershekar and further proceeded for the concerned Courts.
After production of the UTP in the concerned courts at Mumbai, Coimbatore and Bengaluru, the escorting team was scheduled to arrive at Delhi on 19.10.2017 by train No. 12629 (Sampark Kranti Express) but the escorting team did not reach the railway station at scheduled time and the driver of the jail van deployed for picking up the escort party and the UTP waited there for long time although the train arrived at their scheduled time. Thereafter, the driver informed the Duty Officer of 3rd Bn. DAP, who further reported the matter to RI/3rd Bn. DAP. Reserve Inspector of 3rd Bn. also tried to contact the Incharge escort party but he did not pick-up his phone. One member of escort party responded on the mobile phone of Constable working as Outstation Munshi and told that they are coming in a taxi via Ring Road. After receiving the information, RI/3rd Bn. asked them to meet at Brar Square PCR Point-80. Thereafter, RI alongwith staff and two Govt. Innova reached at Brar Square. After waiting for 10-15 minutes, the escorting team alongwith UTP arrived there by an Ertiga taxi. The UTP Sukesh Chandrashekar and the escorting team were shifted in the Innova vehicle and taken to the Central Jail under the safe custody of RI/3rd Bn. The escort party could not explain the specific reason about the delay of approximately 04 hours and use of private taxi for transportation of the UTP instead of using Govt. vehicle. Enquiry by ACP Kishore Kumar revealed that the 3 OA No.233/2018 escorting party had brought the UTP to Delhi by Air instead of train. The footage of CCTV clearly established that on 07.10.2017 ASI Rajesh and Const. Nitin alongwith UTP had travelled by Indigo flight No. 4376 at 2345 hours for Bengaluru and came back by Vistara air flight No. UK- 882 on 19.10.2017. This is the incontrovertible evidence against the delinquent police officials that they indulged in providing undue favour and facilities to the UTP. All the members of the escort guards were placed under suspension vide Order No. 8845-900/HAP (P-II)/III Bn. DAP dated 20.10.2017 and ACP/ Central Jail/3rd Bn. DAP Shri Kishore Kumar was directed to conduct an enquiry vide order No. 8902-03/HAP (P-II)/3rd Bn. DAP dated 20.10.2017. During enquiry conducted by ACP Kishore Kumar from the escort part revealed that the entire escort team had wilfully connived with UTP and conspired among themselves in following manners:-
1. They provided undue, unwarranted favours and facilities to UTP Sukesh @ Chandrashekhar, by transporting the UTP by Air instead of Train and during this process they also availed undue facilities provided by the UTP.
2. Since the UTP was of high risk category , as such the escort party was supposed to provide proper safety and security to the UTP but instead of this they divided themselves in two teams.
ASI Rajesh and Const. Nitin accompanied the UPT by air and that too without arms. The remaining 05 police personnel went separately by train. In this process they compromised the safety and security of the UTP which is the prime responsibility of the escort guard.
3. Apart from this, they facilitated the UTP by allowing to shop with his wife.
4. When the raid was conducted by the Income Tax officials over the UTP at Bengaluru, none of the guard members informed the senior officers of this Bn. in this regard.
5. In the process the entire escort team has concealed the facts and tried to mislead to the senior officers to hide their misconduct.
6. Their conduce is in total contravention of the provision of the Constitution and has endangered due process of law and also affected the interest of this justice. As public servant assigned with duty of execution of law, they have not only violated the law but also endangered the security of state by conniving in illegal and unconstitutional act. They have misused their official position not only for their personal interest but also subverted the procedure established by law in conniving with the Under Trial Prisoner.
This shows that the above mentioned members of the escorting party violated the standing instructions, procedure as well as protocol by providing undue favours and facilities to the UTP. They were perplexed and unanswerable when confronted 4 OA No.233/2018 by RI/3rd Bn. DAP as well as by the undersigned. The probability of their malafide act is established beyond doubt. Their omission & commission has not only sent a wrong message amongst the pubic as well as other sincere & dedicated personnel of the force.
Prime facie holding an enquiry in this case would only be an advantage to the members of the defaulting Escort Guard as the probability to manage the evidence and witnesses in their favour at later stage also cannot be ruled out . Therefore, it would not be reasonable and practicable to hold a regular departmental enquiry against the defaulters as it is believed that witnesses either will not join the enquiry or they will not depose against the police officials. Moreover, the identity of High Risk UTP will be exposed during the regular departmental enquiry. The UTP is highly influential and powerful and may indulge in thwarting the D.E. proceeding to help the delinquent officials as quid pro quo.
In this context, efforts were made to bring some credible witness who can give evidence against the misconduct of above police officials but no one has openly come forward as it calls for great courage to depose against the police officials. Under such circumstances, holding a proper detailed enquiry is not feasible. Policing demands utmost levels of integrity, probity and an upright public image from a police officer. A spotless conduct is of paramount importance for all police officers.
In light of the given facts, it is concluded that, firstly, further enquiry is not feasible in this case due to absence of reliable witnesses and Secondly, prime facie the facts revealed that actions on the part of above named police officials amount to misconduct and act of highly unbecoming of a police officer.
The misconduct committed by the above named police officials has put the entire police force to shame. Such misconduct cannot be tolerated in any disciplined organization like Delhi Police whose basic duty is to protect the life of citizen of the society.
After having committed above gravest misconduct, if the above named police officials are allowed to continue in the police force it would be detrimental to public interest and further tarnish the image of the Police force in society. The facts and circumstances of the case are such that it would reasonably be impracticable to conduct a further enquiry against the above name delinquent police personnel of the guard party.
The misconduct on the part of above named police officials is of such a grave nature that is warrants an exemplary punishment of dismissal, in order to send a strong message so as to prevent the recurrence of such unprofessional and unacceptable behavior of moral turpitude. Taking into account the totality facts and circumstances of the case of mentioned above, the undersigned is of the firm opinion and is satisfied that acts and grave misconduct on the part of above named 5 OA No.233/2018 police officials of the guard party attract the provisions of Article 311 (2) (b) of the Constitutional of India and make them completely unfit to continue in police service.
Therefore, I, Deotosh K. S. Singh, Deputy Commissioner of Police , III Bn. DAP, Delhi, being competent authority as well as with the prior consent/approval of Special Commissioner of Police (G.A) Delhi, hereby dismiss ASI (Exe.) (SGD) Rajesh Kumar, No. 6848/DAP (PIS No. 28891679), HC (Exe.) Jeewan Chander, No. 7178/DAP (PIS No. 28980011), HC (Exe.), Julian George J., No. 2462/DAP (PIS No. 28951089), Const. (Exe.) Nitin Kumar, No. 2599/DAP (PIS No. 28092708), Const. (Exe.) Keshav Kumar, No. 7367/DAP (PIS No. 28070347), Const. (Exe.) Dharmender, No. 6996/DAP (PIS No. 28070999) and Const. (Exe.) Pushpendra Singh No. 2874/DAP (PIS No. 28092822) from Delhi Police force under Article- 311 (2) (b) of the Constitution of India with immediate effect. Their suspension period from 20.10.2017 to the date of issue of this order is also decided as period "not spent on duty", which shall not be regularized in any manner".
3. The appeal preferred by the applicant against the aforesaid dismissal order was rejected by the Appellate Authority, vide Annexure A-2 order dated 19.12.2007 and the relevant paragraph of the same reads as under:-
"I have carefully gone through the appeal, impugned order dated 21.10.2017 and all the relevant material on record. I have also heard the appellants in the Orderly Room on 05.12.2017 except Ex. ASI (Exe.) (SGD) Rajesh Kumar, No. 6848/DAP and Ex. Const. (Exe.) Nitin Kumar, No. 2599/DAP as they are in Judicial custody. During OR, they have re- iterated the pleas already raised in their appeal. The contentions of the appellants are devoid of merit. The disciplinary authority has issued the order in accordance with the law. It is not necessary to provide the appellants the opportunity to defend themselves in any other manner while invoking Article 311 of Constitution of India. It is a matter of record that the appellants had provided undue, unwarranted favours and facilities to UTP Sukesh @ Sukesh Chandrashekhar, by transporting him by Air instead of Train and during this process they have also availed undue facilities provided by the UTP. The footage of CCTV camera clearly established that on 07.10.2017, ASI Rajesh and Const. Nitin alongwith UTP had travelled by Indigo Flight No. 4376 at 2345 hours for Bengaluru and came back by Vistara air flight No. UK 882 on 19.10.2017. This is the incontrovertible evidence against the appellants that they indulged in providing undue favour and facilities to the UTP. Apart from this, they also facilitated the UTP by allowing to shop with his wife and when the raid was conducted by the Income Tax officials over the 6 OA No.233/2018 UTP at Bengaluru, none of the appellants informed the senior officers of the battalion in this regard. In the process the appellants have concealed the facts and tried to mislead the senior officers to hide their misconduct. Since the UTP was of high risk category, the appellants were supposed to provide proper safety and security to the UTP but instead of this they divided themselves in two teams. ASI Rajesh and Const. Nitin accompanied the UTP by air and that too without arms. The remaining 05 police personnel went separately by train. In this process they compromised the safety and security of the UTP which is the prime responsibility of the appellants (Escort guards). Their conduct is in total contravention of the provision of the Constitution and has endangered due process of law and also affected the interest of the justice. As public servant assigned with the duty of execution of law, they have not only violated the law but also endangered the security of state by conniving in illegal and unconstitutional act. They have misused their official position not only for their personal interest but also subverted the procedure established by law in conniving with the Under Trial Prisoner. The appellants have miserably failed to perform duty assigned to them. The disciplinary authority has decided the case on merits after considering all the facts and circumstances of the case. The appellants doesn't deserve leniency as their misconduct is a gross one reflecting utter carelessness, indiscipline behavior and serious dereliction in the discharge of duty as well as lack of professionalism. Therefore, assessing in totality the facts and circumstances of the case, I am of the firm view that the act of the appellants attracted the provision of Article 311 (2) (b) of Constitution of India and made them completely unfit for police service. As such in view of given facts on record and circumstances of the case, I see no reason to interfere with the order of the punishment. The appeal is, accordingly, rejected."
4. Heard Shri Ajesh Luthra, learned counsel for the applicant and Mrs. Harvinder Oberoi, learned counsel for the respondents and perused the pleadings on record.
5. In view of the rival submissions, the question fell for our consideration was, in the facts of the case, whether the action of the respondents in terminating the services of the applicant, without holding a regular departmental enquiry, by invoking Sub-Clause (b) of the proviso to Article 311(2) of the Constitution of India, is legal and valid?
7 OA No.233/2018
6. Article 311 of the Constitution of India reads as under:
"311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State (1) No person who is a member of a civil service of the Union or an all India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by a authority subordinate to that by which he was appointed (2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed: Provided further that this clause shall not apply
(a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or
(b) where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or
(c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State, it is not expedient to hold such inquiry."
7. In the Constitution Bench decision of the Hon'ble Supreme Court in Union of India Vs. Tulsi Ram Patel-(1985) 3 SCC 398, the scope of Article 311 was extensively discussed and the same is 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. 'It is not possible to enumerate the cases in which it would not be reasonably 8 OA No.233/2018 practicable to hold the inquiry, but some instances by way of illustration may, however, be given. It would not be reasonably practicable to hold an inquiry where the government servant, particularly through or together, with his associates, so terrorizes, threatens or intimidate witnesses who are going to give evidence against him with fear of reprisal as to prevent them from doing so or where the government servant by himself or. together with. or through others threatens, intimidates and terrorizes the officer who is the disciplinary authority or members of his family so that he is afraid to hold the inquiry or direct it to be held. It would also not be reasonably practicable to hold the inquiry where an atmosphere of violence or of general indiscipline and insubordination prevails, and it is immaterial whether the concerned government servant is or is not a party to bringing about such an atmosphere. In this connection, we must bear in mind that numbers coerce and terrify while an individual may not. The reasonable practicability of holding an inquiry is a matter of assessment to be made by the disciplinary authority. Such authority is generally on the spot and knows what is happening. It is because the disciplinary authority is the best judge of this that clause (3) of Article 311 makes the decision of the disciplinary authority on this question final. A disciplinary authority is not expected to dispense with a disciplinary inquiry lightly or arbitrarily or out of ulterior motives or merely. in order to avoid the holding of an inquiry or because the Department's case against the government servant is weak and must fail. The finality given to the decision of the disciplinary authority by Article 311(3) is not binding upon the court so far as its power of judicial review is concerned and in such a case the court will strike down the order dispensing with the inquiry as also the order imposing penalty...................".
(Emphasis supplied)
8. In Satyavir Singh & Others Vs. Union of India and Others, AIR 1986 SC 555, the appellants who were employed in the Research and Analysis wing, Cabinet Secretariat, Government of India, were dismissed from service under Article 311(2)(b) read with Rule 19 of CCS (CCA) Rules, 1965, without serving any charge-sheet and without holding any inquiry. When strict security measures were introduced in the office building where the appellants were working, a number of staff members collected in the galleries protesting against the said security regulations and demanded its immediate withdrawal, and in that process slogans were shouted and employees misbehaved with the senior officers and large scale unrest was prevailed and senior officers could be rescued only after the intervention of the police and 31 agitators were arrested and were suspended and criminal cases were registered against them. Even 9 OA No.233/2018 thereafter, the unrest went on. Ultimately, the appellants were dismissed under Article 311(2)(b) read with Rule 19 of the CCS (CCA) Rules, by stating that due to the practices of coercion, intimidation and such like threats and postures adopted by the appellants the atmosphere is so tense and abnormal that no witness will cooperate with any proceedings and hence, it is not reasonably practicable to hold any inquiry. The Hon'ble Apex Court, after referring the decision of the Constitution Bench in Tulsi Ram Patel (supra), upheld the action of the authorities.
9. In Jaswant Singh v. State of Punjab, (1991) 1 SCC 362, observed as under:
"5. ..............The decision to dispense with the departmental enquiry cannot, therefore, be rested solely on the ipse dixit of the concerned authority. When the satisfaction of the concerned authority is questioned in a Court of law, it is incumbent on those who support the order to show that the satisfaction is based on certain objective facts and is not the outcome of the whim or caprice of the concerned officer."
10. In Chief Security Officer and Others Vs. Singasan Rabi Das, (1991) 1 SCC 729, it was alleged that while the respondent was on duty in the Railway Yard, he allowed 22 outsiders to carry the stolen Railway material after taking Rs.1 each from them. When the respondents removed him from service, invoking powers under Rule 44 to 46 of the Railway Protection Force, 1959, by dispensing with the inquiry, by stating that "it is not considered feasible or desirable to procure the witnesses of the security/other railway employees since this will expose them and make them ineffective for future and these witnesses, if asked to appear at a confronted enquiry are likely to suffer personal humiliation and insults 10 OA No.233/2018 thereafter or even their family members may become targets of acts of violence", the Hon'ble Apex Court while dismissing the appeal held as under:
5. ......... We fail to understand how if these witnesses appeared at a confronted enquiry, they are likely to suffer personal humiliation and insults. These are normal witnesses and they could not be said to be placed in any delicate or special position in which asking them to appear at a confronted enquiry would render them subject to any danger to which witnesses are not normally subjected and hence these grounds constitute no justification for dispensing with the enquiry. There is total absence of sufficient material or good grounds for dispensing with the enquiry. ................."
11. In Union Territory, Chandigarh and Others Vs. Mohinder Singh, (1997) 3 SCC 68, the respondent, a Sub Inspector of Police, was dismissed from service under Article 311(2)(b), by dispensing with the inquiry, by stating that a report submitted by Superintendent of Police proved the nefarious activities and misdeeds of the respondent and hence, witnesses cannot come forward freely to depose against him in a regular departmental inquiry. It was held as under:
"5. Clause (3) of Article 311, it may be noticed, declares that where a question arises whether it is reasonably practicable to hold an inquiry as contemplated by clause (2), the decision of the authority empowered to dismiss such person shall be final on that question. The Tribunal has not referred to clause (3) at all in its order. We are not suggesting that because of clause (3), the Court or the Tribunal should completely shut its eyes. Nor are we suggesting that in every case the Court should blindly accept the recital in terms of the said proviso contained in the order of dismissal. Be that as it may, without going into the question of extent and scope of judicial review in such a matter, we may look to the facts of this case. The Superintendent of Police, Intelligence, has reported that the respondent "is a terror in the area" and, more important, in his very presence, the respondent "intimidated the complainant Shri Ranjit Singh who appeared to be visibly terrified of this Sub-Inspector". It is also reported that the other persons who were arrested with Ranjit Singh, and who were present there, immediately left his office terrified by the threats held out by the respondent. In such a situation - and keeping in view that all this was happening in the year 1991, in the State of Punjab - the Senior Superintendent of Police cannot be said to be not justified in holding that it is not reasonably practicable to hold an inquiry against the respondent."11 OA No.233/2018
12. In Ex. Constable Chhote Lal Vs. Union of India (2000) 10 SCC 196, the appellant, a Constable, was dismissed from service under Article 311(2)(b) of the Constitution of India and the Hon'ble Apex Court while allowing the appeal, observed as under:-
"3. Mr. Yadav, learned counsel appearing for the appellant contends that though the employer has the power to dispense with an inquiry under Article 311(2), second proviso, clause (b) of the Constitution but the conditions precedent for exercising that power have now been indicated in several decisions of this Court and in the present case, those conditions precedent cannot be said to have been satisfied. Mr. Choudhary, the learned Senior Counsel appearing for the respondents, on the other hand, contended that the appellant himself being a Police Constable could have influenced the witnesses who would have come in the departmental inquiry and if on that ground the departmental authorities apprehended that the inquiry would not be reasonable and fair, the conclusion cannot be interfered with.
4. Having examined the rival contentions of the parties and bearing in mind the law laid down by this Court indicating the circumstances under which the inquiry under Article 311(2), second proviso, clause (b) of the Constitution can be dispensed with and applying the same to the facts and circumstances and the reasons advanced by the authorities in arriving at the decision, we have no hesitation to come to the conclusion that the order dispensing with the departmental inquiry is not in accordance with law and necessarily the order of dismissal cannot be sustained. We accordingly set aside the order of dismissal passed against the appellant and permit the departmental authority to hold an inquiry if so desired, in accordance with law and come to the conclusion in the said proceeding.
13. In Tarsem Singh Vs. State of Punjab and Others (2006) 13 SCC 581, the appellant, a police constable was dismissed from service under Article 311(2)(b) of the Constitution of India and the Hon'ble Apex Court, while allowing the appeal observed 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........................
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 12 OA No.233/2018 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 canons 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 misdirected himself in passing the said order insofar as he failed to take into consideration the relevant facts and based his decision on irrelevant factors".
14. In Southern Railway Officers Association & Another. v. Union of India and Others, (2009) 9 SCC 24, one Shri S.M.Krishnan, who was a Deputy Chief Mechanical Engineer and was the disciplinary authority of the workmen in the case, and as a disciplinary authority, imposed a punishment of dismissal on one L. Arputharaj, and on his superannuation, in order to go to his native place, went to the Railway Station. The delinquent employees also went to the said Railway Station and started abusing the said S.M.Krishnan with filthy language and assaulted him. He and his family members were threatened to be killed in the presence of other Railway Officers who were present at the same time and at the same place. The delinquent employees allegedly created ugly seen in the plat-form which was witnessed by Railway Officers/Staff and Passengers and accordingly created an atmosphere of violence, general indiscipline and insubordination, and they have also threatened, intimidated and terrorized other officers. In those circumstances, the Hon'ble Apex Court, after considering a long list of cases on the subject, upheld the order of dismissal of the said delinquent employees, passed by invoking the second proviso to 13 OA No.233/2018 Article 311(2) and Rule 14(ii) of the Railway Servants (Discipline and Appeal) Rules, 1968.
15. In Reena Rani v. State of Haryana, (2012) 10 SCC 215, the appellant, a Constable was dismissed from service by invoking Article 311(2)(b), by stating that while she remained posted as Prisoner Escort Guard, developed close relation with one Mustak, despite the fact that he was involved in seven criminal cases and hence, she did not deserve to be retained in service and it was not practicable to hold a regular departmental inquiry because no independent witness would be available. Applying the law enunciated in Tulsi Ram Patel (supra), and other decisions to the facts of the said case, the Hon'ble Apex Court by holding that the appellant's dismissal from service was ultra vires under the provisions of the Article 311, allowed the appeal.
16. In Risal Singh v. State of Haryana & Ors., (2014) 13 SCC 244, the appellant, an Assistant Sub-Inspector, as alleged, was involved in a corruption sting operation in a television channel, and thereafter he was dismissed from service under Article 311(2)(b) and the relevant Paragraphs of the said order reads as under:
"2. ........ 3. Being aggrieved by the aforesaid order, the appellant preferred a civil writ petition and the High Court without adverting to the essential contention that no reason had been ascribed for dispensing with the inquiry under Article 311(2)(b) opined that prompt action was required to be taken to avoid spreading of trouble and, therefore, the order passed by the authority was justified."14 OA No.233/2018
The Hon'ble Apex Court , after considering Tulsi Ram Patel (supra) and other decisions, under Article 311(2)(b), while allowing the appeal held as under:
"10. Tested on the touchstone of the aforesaid authorities, the irresistible conclusion is that the order passed by the Superintendent of Police dispensing with the inquiry is totally unsustainable and is hereby annulled. As the foundation founders, the order of the High Court giving the stamp of approval to the ultimate order without addressing the lis from a proper perspective is also indefensible and resultantly, the order of dismissal passed by the disciplinary authority has to pave the path of extinction."
17. In Ved Mitter Gill v. Union Territory Administration, Chandigarh & Others, (2015) 8 SCC 86, while the appellant was holding the charge of the post of Deputy Superintendent of Police, Model Jail, Burial, Chandigarh, four Under Trials, three of whom were facing trial for the assassination of a former Chief Minister of Punjab Shri Beant Singh and one was being tried for the charge of murder, escaped from the jail, by digging an underground tunnel. The Adviser to the Administrator, Union Territory, Chandigarh by an order dated 01.03.2004 having invoked Article 311(2)(b) dismissed the appellant. The relevant paragraph of the said order reads as under:
7. .................. And whereas the above conduct of the said Shri Gill establishes that he was directly involved in the conspiracy to help the above-mentioned under trials to escape from the Model Jail, Chandigarh.
It has also come to light during investigation that three of the escaped under trials had linkage with the Babbar Khalsa International, a known and a dreaded terrorist organization, which is involve in anti-national and anti-State activities. The said Shri V.M. Gill is a senior, permanent and non- transferable official of the Model Jail, Chandigarh and junior jail officials, who are witnesses in the above case are not likely to come forward to depose against him if disciplinary proceedings are initiated so long as he remains in service, for fear of earning his wrath in future. Further, due to the involvement of the escaped under trials, with the Babbar Khalsa International, a known and dreaded terrorist organization, no witness is likely to come forward to depose against him in the disciplinary proceedings, if initiated, due to fear of life. Independence assessment also is that three of the escaped under trials are likely, inter alia, to pose a danger to the lives of the people. In these 15 OA No.233/2018 circumstances I am satisfied that the holding of an inquiry as contemplated by Article 311 (2) (b) of the Constitution of India and the Punjab Civil Services (Punishment and Appeal) Rules, 1970 as made applicable to the employees of Union Territory, Chandigarh, is not reasonably practicable; "
The Hon'ble Apex Court, after observing the following, "17. Before delving into the pointed issues canvassed at the hands of the learned counsel representing appellant/petitioners, it is necessary for us to notice the parameters laid down by this Court for invoking clause (b) of the second proviso to Article 311(2) of the Constitution of India. Insofar as the instant aspect of the matter is concerned, the norms stipulated by this Court for the above purpose, require the satisfaction of three ingredients. Firstly, that the conduct of the delinquent employee should be such as would justify one of the three punishments, namely, dismissal, removal or reduction in rank. Secondly, the satisfaction of the competent authority, that it is not reasonably practicable to hold an inquiry, as contemplated under Article 311(2) of the Constitution of India. And thirdly, the competent authority must record the reasons of the above satisfaction in writing."
and after examining the facts of the case in detail, held as under:
"29. For the reasons recorded above, we are satisfied, that all the parameters laid down by this Court, for a valid/legal application of clause (b) to the second proviso under Article 311(2) of the Constitution of India, were duly complied with."
and accordingly, by upholding the order under Article 311(2)(b), dismissed the appeal.
18. Various other cases decided by the Hon'ble High Court and of this Tribunal and cited by both the sides, are not discussed, since the principle of law, on invocation of Article 311(2)(b) of the Constitution of India was sufficiently dealt with by the Hon'ble Apex Court in the cases already discussed above.
19. A conspectus of the aforesaid decisions discloses that an order passed invoking Article 311(2)(b), just by reciting the language of the same, verbatim, cannot made it valid, unless sufficient/cogent reasons and circumstances satisfying the requirements of the said Article were prevailing at the relevant time. Similarly, every order 16 OA No.233/2018 passed by invoking Article 311(2)(b), cannot become invalid on the ground of violation of principles of natural justice. What is required is the existence of valid reasons and circumstances for dispensing with the inquiry before invoking Article 311(2)(b).
20. In one line of cases, after satisfying, in the facts of the said cases, it is not reasonably practicable to hold an inquiry, the orders under Article 311(2)(b) were upheld. Similarly, in another line of cases, noticing that the requirements of Article 311(2)(b) for dispensing with the inquiry, in the circumstances of the said cases were not satisfied, the orders were set aside.
21. In this view of the matter, it is necessary to examine the circumstances prevailing in the present case at the time of passing of the orders under Article 311(2)(b) and whether the reasoning given by the respondents, is justified.
22. It is the case of the respondents that the applicant being an Assistant Sub Inspector (Executive), working on the outstation command, along with certain Head Constables and Constables was detailed to produce High Risk Prisoner UTP Sukesh Chandershekar R/o Central Jail No. 1, Delhi before the Hon'ble Courts at Mumbai, Coimbatore and Bengaluru on 09.10.2017, 12.10.2017 and 16.10.2017 respectively. The said team of Escort Guard headed by the applicant went to the Central Jail from where they took High Risk Under Trail Prisoner (UTP) Sukesh Chandershekar and further proceeded for the concerned Courts. After production of the said 17 OA No.233/2018 UTP in the concerned courts at Mumbai, Coimbatore and Bengaluru, the said escorting team was scheduled to arrive at Delhi on 19.10.2017 by train No. 12629 (Sampark Kranti Express) but the escorting team did not reach the railway station at scheduled time and the driver of the jail van deployed for picking up the escort party and the UTP, waited there for long time, although the train arrived at the scheduled time. Thereafter, the driver informed the Duty Officer of 3rd Bn. DAP, who further reported the matter to RI/3rd Bn. DAP. The Sub Inspector of 3rd Bn. also tried to contact the Incharge escort party, but he did not pick-up his phone and one member of escort party responded on the mobile phone of Constable working as Outstation Munshi and told that they are coming in a taxi via Ring Road. After receiving the information, RI/3rd Bn. asked them to meet at Brar Square PCR Point-80. Thereafter, RI alongwith staff and two Govt. Innova reached at Brar Square. After waiting for 10-15 minutes, the escorting team alongwith UTP arrived there by an Ertiga taxi. The UTP Sukesh Chandrashekar and the escorting team were shifted in the Innova vehicle and taken to the Central Jail under the safe custody of RI/3rd Bn. The escort party could not explain the specific reason about the delay of approximately 04 hours and use of private taxi for transportation of the UTP instead of using Govt. vehicle. Enquiry by ACP Kishore Kumar revealed that the escorting party had brought the UTP to Delhi by Air instead of train and the footage of 18 OA No.233/2018 CCTV clearly established that on 07.10.2017 ASI Rajesh (applicant herein) and Const. Nitin alongwith UTP had travelled by Indigo flight No. 4376 at 2345 hours for Bengaluru and came back by Vistara air flight No. UK- 882 on 19.10.2017 and the same is the incontrovertible evidence against the delinquent police officials that they indulged in providing undue favour and facilities to the UTP, and during the enquiry conducted by ACP revealed that the entire escort team had wilfully connived with UTP and conspired among themselves in the manner described in the impugned order dated 21.10.2017. It is also the case of the respondents that the escorting party violated the standing instructions, procedure as well as protocol by providing undue favours and facilities to the UTP. They were perplexed and unanswerable when confronted by RI/3rd Bn. DAP as well as by the Disciplinary Authority and the probability of their mala fide act is established beyond doubt. Their omission & commission has not only sent a wrong message amongst the pubic as well as other sincere & dedicated personnel of the force.
23. The respondents after detailing the circumstances leading to the disciplinary action against the applicant and others, explained the reasons for dismissing the applicant, by dispensing with the regular enquiry, by stating that "Prime facie holding an enquiry in this case would only be an advantage to the members of the defaulting Escort Guard as the probability to manage the evidence and witnesses in their favour at later stage also cannot be ruled out 19 OA No.233/2018 and, therefore, it would not be reasonable and practicable to hold a regular departmental enquiry against the defaulters as it is believed that witnesses either will not join the enquiry or they will not depose against the police officials and moreover, the identity of High Risk UTP will be exposed during the regular departmental enquiry and the UTP is highly influential and powerful and may indulge in thwarting the D.E. proceedings to help the delinquent officials as quid pro quo".
24. From the above, it is established that the respondents have conducted a preliminary enquiry and basing on the same, formed the opinion that the applicant was guilty of the charges levelled against him. It is further clear that the respondents have collected sufficient evidence in the form of CCTV footage and the air travel tickets etc., to prove the charges against the applicant. However, by observing that, holding an enquiry would be an advantage to the members of the defaulting Escort Guard and in spite of all the efforts, no credible witness has openly come forward as it calls for great courage to depose against the police officials, the respondents dismissed the applicant, by dispensing with the departmental enquiry, by invoking the second proviso to Article 311(2). The contention of the respondents is unsustainable as it is evident that they were able to conduct the preliminary enquiry and were able to collect certain evidence against the applicant. Further, it is seen that the main allegation is that the applicant and other members of 20 OA No.233/2018 the escort guard travelled by air, instead of train and stayed in hotels instead of designated locations and allowed the UTP and his wife to shop etc., all are in public domain and cannot be said that collection of evidence with regard to the said allegation is not possible to the respondents, who are none other than the police.
25. A careful examination of the facts in the instant OA shows that the decision of the Hon'ble Apex Court in Tarsem Singh (supra) is squarely applicable. In Tarsem Singh (supra), the Hon'ble 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 appellant. 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".
26. Further, in the facts of the present case, we are of the view that the reasons and justification given by the respondents for dispensing with the enquiry, are not in consonance with the principles laid down by the Hon'ble Apex Court, as detailed, in the above referred decisions.
27. While holding the issue in favour of the applicant, we have not lost sight of the gravamen of the charges and there should be zero tolerance for corruption and misconduct in public services, a fortiori, in the disciplined force, like police. However, before a 21 OA No.233/2018 person is thrown away, the orders should be passed only after following the due procedure.
28. In the circumstances and for the aforesaid reasons, the issue is held in favour of the applicant and the OA is 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, he 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 applicant shall cooperate in early completion of the said departmental proceedings and the treatment of suspension period shall be dependent on the same. No costs.
(A.K. BISHNOI) (V. AJAY KUMAR) MEMBER (A) MEMBER (J) RKS