Indian Kanoon - Search engine for Indian Law

Central Administrative Tribunal - Delhi

Dharambir Singh vs Comm. Of Police on 22 July, 2022

                          1                   O.A. No.3647 of 2016


            Central Administrative Tribunal
              Principal Bench,, New Delhi


                  O.A. No.3647 of 2016

                        Orders reserved on : 14.07.2022

                       Orders pronounced on ::20.7.2022
                                                  .2022

         Hon'ble Mr. R.N. Singh, Member (J)
       Hon'ble Shri Tarun Shridhar
                          Shridhar, Member (A)

Sh. Dharambir Singh (Aged
                     (Aged about 48 years)
Ex. Const. (Exe.)
PIS No. 28902235
S/o Sh. Attar Singh,
R/o Vill. Shyorompura,
Distt. Bulandshahar, (U.P.)
                                                 ...Applicant
(through Advocate Shri T.N. Tripathi
                            Tripathi)

                         Versus

1.   Delhi Police,
     Through
     Commissioner of Police,
     I.P. Estate, I.T.O.,
     New Delhi-110001
           Delhi

2.   Special Commissioner of Police,
     Provisioning & Logistics
     New Delhi.

3.   Deputy Commissioner of Police,
     Provisioning & Logistics
     New Delhi.
                                        ...    Respondents
(through Advocate Shri Amit Anand
                            Anand)
                             2                   OA No.3647 of 2016


                         ORDER

Hon'ble Mr. R.N. Singh, Member (J) :

By filing the present instant Original Application under Section 19 of the Administrative Tribunals Act, 1985, the applicant has challenged the Order dated 19.2.2015 (Annexure A-1) passed by the Disciplinary Authority dismissing him from service by invoking their power under Article 311(2)(b) of the Constitution of India and also the order dated 19.04.2016 (Annexure A-2) passed by the Appellate Authority rejecting his appeal preferred against the aforesaid order of the Disciplinary Authority. The applicant has prayed for setting aside of the aforesaid impugned order(s) passed by the Disciplinary and Appellate Authorities and has also prayed for his reinstatement with all consequential benefits.

2. Brief facts leading to filing of the instant OA are that the applicant, who was working as a Constable (Executive), in Delhi Police, was on one day casual leave for 19.8.2013 with permission to avail prefix & suffix of 17/18.08.2013 & 20.8.2013 being Gazette Holiday was due to back on 21.8.2013, but he did not resume his duty on due date. Hence, the applicant was marked absent vide DD No.33 dated 24.8.2013 and an absentee notice dated 3 OA No.3647 of 2016 03.09.2013 was also issued to him. The said notice was got delivered at the residence of the applicant by deputing HC Mahipal Singh, 144/L, who submitted his report dated 11.9.2013 that the applicant was not found at his residence nor in his village in spite of repeated efforts made by him. Hence, he had to serve the absentee notice upon his father, Shri Attar Singh. After service of absentee notice upon his father, he again made his effort to find the applicant but he could not find him. His father gave in writing stating therein that due to quarrel with neighbours, the name of his son (applicant) has been got mentioned in FIR by the villagers. Thereafter, the SIP/P&T vide his office letter No.370/SIP/P&L dated 23.1.2014 had called the detailed report of case FIR from SSP/Bulandshahar (Uttar Pradesh).

2.1 As per the report of SSP/Bulandshahar received vide office No.02/2014 dated 27.5.2014 along-with report dated 5.5.2014 of SHO/Anoopshahar, Bulandshahar (UP) mentioning therein that on the complaint of Shri Parveen S/o Ram Kishan Jatav R/o Village Sheoram Pur, PS Anoopshahar District Bulandshahar dated 23.8.2013, a case vide FIR No.194/2013 dated 23.8.2013 under Sections 147/148/149/323/504/302 IPC and 3(2) 5 4 OA No.3647 of 2016 SC/ST Act, PS Anoopshahar, District Bulandshahar was registered against the applicant and other four persons. During the course of investigation, co-accused, namely, Karambir S/o Attar Singh, Jaiveer S/o Attar Singh and Dinesh S/o Nepal Singh were arrested and challan has been filed against them in the learned Court. As per the said report, the investigation conducted into the matter revealed that the applicant, who is working as Constable in Delhi Police was on medical rest from 19.8.2013 to 17.9.2013 was found present in the village during the said period of incident and fully involved in the said case. 2.2 During the course of investigation, it was told by Doctor Shri Jagdish Singh that applicant attended the hospital on the ailment/injury in his heel but was able to walk and was advised for X-Ray and medical rest from 19.8.2013 to 17.9.2013 by him. Shri Vijay Gautam, Sr. S.P. Dehat, Bulandshahar, vide his report dated 7.5.2014 stated that there are sufficient evidence which proves the involvement of applicant in the said case. Besides the SHO, Anoopshahar, District Bulandshahar vide his report No.Nil dated 28.5.2014 has intimated that the applicant is an accused in the said case. The said report was received in the office on 25.6.2014 dated 25.6.2014 and has again 5 OA No.3647 of 2016 intimated vide his report dated 22.7.2014, which was received in the office of the respondents vide Diary No.13360/GD/P&L dated 11.8.2014 that there is sufficient evidence for involvement of the applicant in the said case. Since he was found fully involved in the said criminal case, the applicant was placed under suspension vide Office Order dated 25.8.2014.

2.3 In order to initiate the DE against the applicant under the provisions of the Delhi Police (Punishment & Appeal) Rules, 1980, relevant relied upon documents of case FIR NO.194/2013 under Sections 147/148/149/323/504/302 IPC and 3(2) 5 SC/ST Act, PS Anoopshahar, District Bulandshahar, UP, along with names of witnesses were asked from S.P./Bulandshahar vide office Memo dated 9.9.2014, a copy of which was also endorsed to RI/P&T with the direction to collect the relevant documents by deputing a responsible officer. SI Krishanji Dass, No.D-2926 of P&L, who was deputed for the said purpose from P&L Unit, had submitted his report along with written report of Shri Ashok Kumar, SSP/Dehat, Bulandshahar dated 11.9.2014. As per these reports, Non-Bailable warrant against the applicant was issued from the learned court of Chief Judicial Magistrate, 6 OA No.3647 of 2016 Bulandshahar (UP) and the applicant was required to be produced before the learned Court upto 28.9.2014 and the required documents cannot be supplied as the case is under investigation. Despite issuance of Non-Bailable Warrant, the applicant was not arrested. Therefore, Inspector S.B. Yadav contacted with Sh. S.L. Niranjan, SHO/Bulandshahar telephonically for which a DD entry No.53/DO/P&L dated 21.10.2014 was also lodged by Inspector S.B. Yadav, the then RI/P&L. The said DD entry also shows that the applicant was not arrested despite issuance of Non Bailable Warrant. The Sr. S.P., Dehat, Bulandshahar Shri Ashok Kumar vide his office report dated 16.12.2014 has forwarded the report of Sh. R.L. Niranjan, SHO/Anoopsahar, dated 15.12.2014 which states that there is sufficient evidence for involvement of the applicant in the said case. Non-Bailable Warrant against the applicant was issued from the learned Court of CJM, Bulandshahar and proceedings u/s 82/83 Cr.P.C. is under process. Therefore, the required documents and names of witnesses cannot be supplied before arrest of the applicant as being confidential. The applicant is absenting himself w.e.f. 22.10.2014.

2.4 On the basis of the aforesaid reports, opinion from LA to C.P., Delhi was obtained and in compliance of circular issued from PHQ dated 11..9.2007, the matter was forwarded to Spl. C.P./Admn., Delhi for seeking her concurrence for taking necessary action against the applicant under the provisions of Article 311(2)(b) of the Constitution of India and the same has been approved by the said Spl. C.P. 2.5 The Disciplinary Authority having regard to the above reports opined that the same proves that the applicant is an accused in the above case FIR and that there are sufficient evidence against the applicant which prove his involvement in the said case. But at this stage, the authority concerned of Anoopsahar, Bulandsahar are unable to provide documents being confidential and before arrest of the applicant. Since sufficient evidence is existing, hence, no P.E. was conducted. The involvement of the applicant in above mentioned criminal case shows that he committed the gravest act of misconduct and also shows his criminal propensity and complicity and the facts and circumstances of the case are such that despite issuance of N.B.W., the applicant has not been arrested and evading his arrest and it would not be reasonably 8 OA No.3647 of 2016 practicable to conduct a regular departmental enquiry against the applicant as there is reasonable belief that no witness/complainant would come forward to depose against him in case a departmental enquiry is initiated against him. Further retention of the applicant in police service is not warranted in the pubic interest. The police department is constituted to serve the police, preserve their rights and peace. The society expects the policeman to protect citizen from criminals and crimes. On the basis of the aforesaid grounds, the Disciplinary Authority vide impugned order dated 19.2.2015 dismissed the applicant from service. The appeal preferred by the applicant against the aforesaid order of the disciplinary authority was rejected by the appellate authority vide order dated 19.4.2016.

3. Pursuant to the notice, the respondents have filed their counter reply. The applicant has filed his rejoinder.

4. During the hearing, at the outset, Shri Tripathi, learned counsel for the applicant has submitted that the instant case is squarely covered by the common Order/Judgment dated 10.2.2022 passed in the case of Ct. Sumit Sharm vs. Govt. of NCT of Delhi and others 9 OA No.3647 of 2016 in OA 1383/2020 and a batch of cases, which was implemented by the respondents vide order dated 29.3.2022. He has also submitted that the case of the applicant is also squarely covered by the Order/Judgment dated 11.12.2019 of the Hon'ble Delhi High Court in Writ Petition (Civil) No.4078/2017, titled Commissioner of Police and others vs. Ashwani Kumar and others, in view of the fact that reasons deducted by the disciplinary authority while passing the aforesaid order, as noted hereinabove, are not sustainable in law as the similar grounds have already been considered and held to be not justified by this Tribunal while deciding the aforesaid cases in which this Tribunal has also taken note of the aforesaid Order/Judgment of the Hon'ble Delhi High Court besides considering plethora of judgments. 4.1 On the strength of the aforesaid, counsel for the applicant has argued that disciplinary and appellate authorities have not correctly applied their mind to the facts of the case. He has further submitted that Govt. of India as well as the respondents themselves through its various circulars provide that the disciplinary authority should not take resort of Article 311(2)(b) of the 10 OA No.3647 of 2016 Constitution of India lightly and should take action only in rarest of rare case where it is not reasonably practicable to hold departmental enquiry and that a Govt. servant is entitled to have an opportunity to defend himself when there are allegations against him and only in exceptional circumstances law permits the department to dispense with the enquiry and other legal formalities, which is not case of the applicant.

4.2 Learned counsel for the applicant has further argued that the disciplinary and appellate authorities have ignored the circular dated 21.12.1993, which categorically stipulates that dismissal of the Police Officers involved in the cases of Rape and Dacoity and any such heinous offences by resorting to the provisions of Article 311(2)(b) of the Constitution of India is illegal and such dismissal without conducting departmental enquiry is illegal because in such cases departmental enquiry can be conveniently held. He has further emphasised that this case is of such a nature in which departmental enquiry can be initiated and the reasons given by the disciplinary authority for dispensing with the departmental enquiry are contrary to the law on the subject. Moreover, the 11 OA No.3647 of 2016 respondents cannot held the applicant guilty of the misconduct without affording him opportunity of defence at his back and that too on the basis of report(s) coming during course of the investigation in the said case FIR. Further, it is argued that the Appellate Authority has passed the appellate order in a mechanical manner.

5. Per contra, Shri Anand, learned counsel for the respondents with the assistance of the counter reply, has submitted that the disciplinary authority has rightly dismissed the applicant from the service by invoking the provisions of Article 311(2)(b) of the Constitution of India and that too, after holding a preliminary inquiry in the matter in the interest of justice and the appeal of the applicant was rightly rejected by the appellate authority.

6. On our query to the learned counsel for the respondents that as to why the instant case be not decided on the basis of the common Order/Judgment passed by this Tribunal (authored by one of us, namely Shri R.N. Singh, Member (J)), while deciding a batch of cases titled Ct. Sumit Sharma vs. Govt. of NCT of Delhi (supra) as the similar kind of grounds, as taken by the Disciplinary Authority for invoking the provisions of Article 12 OA No.3647 of 2016 311(2)(b) of the Constitution of India in the case of the applicant, have already been dealt with by this Tribunal, paras 45 to 48 of which read as under:-

"45. In the cases in hand, it is evident that in most of the cases preliminary inquiry had admittedly been done and regular enquiry had been dispensed with on the ground of possibility of witnesses likely to be unduly harassed or pressurized by the delinquent(s). In all the case FIRs, chargesheet had been filed, list of witnesses had been filed, a few witnesses had been examined or after tiral the accused(s) had been acquitted. In a few cases, the reason for dispensing with the enquiry had been given that the material had come on record to prove the criminal acts of the applicants. The reason had been also of threat to discipline, integrity and morality of the entire police force. On perusal of the impugned orders, it is evident that either the authorities have passed the orders of dispensing with the enquiry on jumping to the conclusion that delinquency or guilt of the applicants as alleged in the case FIRs stood proved even without regular enquiry in the departmental proceedings or trial in the concerned learned court(s). In most of the cases, conclusion about delinquency and commission of the offence(s) by the applicant(s) had been arrived merely on the basis of the preliminary inquiry report/investigation conducted by them and a copy of which had not been provided to them. In none of the aforesaid cases, there was any evidence/material before the authorities as evident from the impugned orders nor as such had been brought before us, to indicate that the applicants were having terror in their area and/or were having link with the terrorist(s) and they were involved in any case of espionage. Nothing has been recorded in the 13 OA No.3647 of 2016 order(s) or shown to us that the applicant(s) had ever threatened or harassed any of the witness(es) and/or the prospective witness(es). There is no evidence or document to indicate that in view of the facts and circumstances of the case(s), any efforts was made to summon the witness(es) to lead the evidence against the applicant(s) or anything was found that on regular enquiry or by summoning the witness(es) the relation with foreign countries was likely to be adversely affected. In the impugned order(s), the respondents have not disclosed that any effort was made by them to conduct the enquiry nor there is any evidence that in spite of their efforts, they had not been able to produce the witness(es) to lead evidence against the applicant(s). Rather the respondents have themselves filed the final challan(s) with a list of witness(es) before the concerned learned Court(s) and in a few cases, the accused(s) had been acquitted as well. In a few cases, witnesses have been examined before the concerned learned Court(s). Moreover, co-delinquent in the cases of Neeraj Kumar (supra) and Ramesh Kumar (supra), the similar impugned orders have been set aside by the Tribunal and the orders of the Tribunal have also attained finality.

46. It is found that the authorities while passing the impugned orders have very casually come to the conclusion that it would not be possible to conduct the departmental enquiry against the delinquent(s) and there being a possibility that witness(es) may not come forward to depose against the applicant(s). Such acts/orders of the respondents are not only in violation of the settled law but also of their own aforesaid circulars dated 21.3.1993 and 11.9.2007 as well. Hence, we are of the considered view that reasons given by the respondents for dispensing with the enquiry are not in consonance with the law settled by the Hon'ble Supreme Court and Hon'ble High Courts and 14 OA No.3647 of 2016 followed by this Tribunal in a catena of cases, a few of which cases are referred to hereinabove.

47. It cannot be in dispute that there must be zero tolerance towards corruption and misconduct in public service. However, without there being sufficient ground(s) to be recorded in writing, the protection given to the public servant of hearing under Article 311 of the Constitution cannot be taken away by the respondents. Our view is supported by the binding judicial precedents, referred to hereinabove.

48. In view of the aforesaid, we are of the considered view that the aforesaid OAs deserve to be partly allowed and the same are partly allowed with the following directions:-

(i) Order(s) passed by the disciplinary and appellate authorities in the aforesaid OAs are set aside with all consequential benefits to the applicants in accordance with the relevant rules and law on the subject; and

(ii) However, the respondents shall be at liberty to initiate disciplinary proceedings against the applicant(s) in accordance with the law."

and that the aforesaid Common Order/Judgment has attained finality as the respondents therein have implemented the same by passing the order dated 29.3.2022, a copy of which is placed on record by the learned counsel for the applicant, the learned counsel for the respondents has not been able to give any cogent 15 OA No.3647 of 2016 reason. However, he has placed reliance on the judgment of this Tribunal in the case of Rani Singh vs. Govt. of NCT of Delhi and others in OA No.516/2021 decided on 7.4.2022.

7. We have perused the Order/Judgment of this Tribunal in Rani Singh's case (supra), relied upon by the learned counsel for the respondents. We find that the facts of the said case are that the applicant's husband, Shri Jiwan Kumar Singh, had joined Delhi Police as Sub Inspector in 1989. He was assigned security duties and said to have left his house in the evening of 08.06.2005. He was already on sanctioned leave for a month and was to join back on 12.06.2005. It is submitted that he did not return home and after making necessary enquiry, the applicant informed Delhi Police about it on 16.06.2005. The husband of the applicant was reportedly missing and has not come back till date. A Notice of Demand dated 02.10.2020 was sent to the respondents requesting grant of family pension and other retiral benefits to the applicant. In the Notice, it was also mentioned that in terms of Sections 107 and 108 of the Indian Evidence Act, 1872, if a person is not heard of for 7 years, there is a presumption of his death. In the Notice of Demand dated 16 OA No.3647 of 2016 02.10.2020, it was stated that Shri Jiwan Kumar Singh is a dead person in law and consequently the applicant therein was seeking grant of GPF and other pensionary benefits. However, the facts of the instance case are entirely different and therefore, the said case is distinguishable on facts itself and is of no help to the respondents in the facts of the case in hand.

8. Having regard to the aforesaid facts and circumstances of the present case, we are of the considered view that this case is squarely covered by the common 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 the same is partly allowed with the following directions:-

(i) Orders dated 19.2.2015 (Annexure A-1) and dated 19.04.2016 (Annexure A-2) passed by the disciplinary and appellate authorities respectively are set aside with all consequential benefits to the applicant in accordance with the relevant rules and law on the subject;

(ii) The respondents shall implement the aforesaid direction within eight weeks of receipt of a copy of this order; and

(iii) However, the respondents shall be at liberty to initiate disciplinary proceedings against the applicant in accordance with the law.

9. However, in the facts and circumstances, there shall be no order as to costs.

(Tarun Shridhar)                                (R.N. Singh)
  Member (A)                                     Member (J)

/ravi/