Central Administrative Tribunal - Delhi
Manoj Rana vs Gnctd on 4 October, 2024
1
OA No. 2130/2024
Item No. 19/C-II
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 2130/2024
Reserved on: -05.09.2024
Pronounced on: - 04.10.2024
Hon'ble Mr. R.N. Singh, Member (J)
Hon'ble Mr. Rajinder Kashyap, Member (A)
Sh. Manoj Rana
Aged about 46 years
S/o Sh. Satbir Singh
R/o RZ-32A-1, Rajiv Vihar
Nazafgarh, New Delhi-43
(Ex Head Constable, Group C)
... Applicant
(By Advocate: Mr. S K Gupta)
Versus
1. Govt. of NCT of Delhi through
Chief Secretary,
Govt. of NCT of Delhi
Players Building,
I. P. Estate, New Delhi
2. Commissioner of Police
Police Headquarter
Jai Singh Road,
New Delhi
3. Addl. Commissioner of Police (Traffic) (HQ)
Police Headquarter
Jai Singh Road,
New Delhi
4. Dy. Commissioner of Police (Traffic)
Dev Parkash Shastri Marg
Todapur Traffic Police Headquarter
Todapur Village New Delhi 110012 ... Respondents
(By Advocate: Mr. S.M. Aatif)
2
OA No. 2130/2024
Item No. 19/C-II
ORDER
Hon'ble Mr. Rajinder Kashyap, Member (A):-
By way of the present OA filed u/s 19 of the AT Act, 1985, the applicant, in the Para 8 of the OA, has prayed for the following reliefs:-
"(i) quash and set aside the order dated 27.08.2015 (Annexure-A-1) and order dated 11.03.2024 (Annexure-A-2) and reinstate the applicant with all consequential benefits;
(ii) May also pass any further order(s), direction (s) as be deemed just and proper to meet the ends of justice:"
2. Pursuant to notice, the respondents have filed their counter affidavit opposing the claim of the applicant and have prayed for dismissal of the present Original Application. The applicant has also filed his rejoinder denying the contention of the counter affidavit and reiterated his claim in the OA.
3. The brief facts of the present case are that the applicant was appointed in Delhi Police w.e.f. 14.11.1998 and he was working as Head Constable in Delhi Police. The applicant states that he was falsely implicated in case FIR No. 508/2015 dated 28.07.2015 u/s 365/384/419/411 IPC, PS Bawana and the applicant was also implicated in other two FIRs namely FIR No. 404/2013 u/s 323/341/34 IPC on 17.11.2013, PS North Dwarka and the applicant was also implicated in third FIR No. 299/2013 u/s 363 IPC and Section 12 of POCSO Act at PS Baba Hari Das Nagar on 21.11.2013.
3OA No. 2130/2024 Item No. 19/C-II
4. The applicant further submits that since he was arrested and because of the involvement of 3 cases, it was found by the Disciplinary Authority that the conduct of the applicant is unbecoming of a police official and very serious allegations have been leveled and the applicant has violated the norms. It is mentioned in the order that after having committed 3 misconducts, if the applicant is allowed to continue in the police force, it would be detrimental to public interest and further tarnishing the image of the police force. It is further stated by the applicant that it is not reasonably practicable to hold the enquiry as it is reasonable brief that the witnesses would not come forward. The applicant further submits that when the order was passed, he was in judicial custody; therefore, the aforesaid ground is contrary to the law and against the circulars of Delhi Police.
5. The applicant also adds that since he was involved in 3 cases, in two cases, the applicant was discharged / acquitted. It is submitted that in FIR No. 404/2013, PS Dwarka North, the complainant/victim of the offence made the statement for compounding the offence and as such, the applicant and other accused were acquitted from the offence u/s 323/341/34 IPC vide order dated 27.08.2016 passed by Sh. Rajinder Singh, MM 06/SW/Dwarka Court, New Delhi. He further submits that he was acquitted way back in 2016, no attempt was made to take 4 OA No. 2130/2024 Item No. 19/C-II further action against the applicant by the office of the respondents and on the aforesaid issue, the matter was given quietus.
6. The applicant also mentions that in other FIR namely FIR No. 508/2015 after the trial, the judgment was reserved on 22.08.2023 and in terms of order dated 29.08.2023, the Court of Sh. Vinod Joshi, MM-05 (North), Rohini Courts acquitted the applicant and other accused as the prosecution cannot prove the offence u/s 365/383/34 IPC and other witnesses were dropped as they were not traceable. He further submits that his acquittal in the aforesaid second FIR was a clean acquittal and as such, no enquiry could have been conducted against the applicant.
7. The applicant submits that with regard to the third FIR that was registered against the applicant, the trial is pending in the concerned Court and the same is at final stage but the reason mentioned in the order of dismissal dated 27.08.2015 is not apt in law. The applicant further submits that when the appeal was decided by the Appellate Authority, in terms of order dated 11.03.2024, two orders were already available and in respect of case FIR No. 508/2015, the findings of the criminal court has been produced wherein, it was mentioned that the witnesses were turned hostile. The applicant contends that in another matter, since the party compounded the offence, it was also decided against the applicant to make an adverse view. The 5 OA No. 2130/2024 Item No. 19/C-II applicant also states that since the third case is pending, based upon the fact that the charge sheet has been filed and material on the file clearly establishing that the applicant has committed the crime, whereas, no trial has been completed till date and there is no finding of the criminal court in case FIR No. 299/2013, PS Baba Hari Das Nagar and in the absence of finding, the matter was decided by the Appellate Authority as if the charges are proved.
8. The applicant claims that this matter is squarely covered by the judgment of this Tribunal in OA No. 3201/2016 titled as Yashvir Singh Vs. GNCTD decided on 17.05.2023. In the said judgment, this Tribunal has quashed and set aside the order of dismissal dated 17.11.2014 and the appellate authority order dated 29.10.2015 with all consequential benefits. He further contends that the aforesaid judgment was challenged by the respondents before the Hon‟ble High Court of Delhi in WP (C) No. 16009/2023, which was dismissed by the Hon‟ble High Court vide order dated 29.04.2024. The applicant further claims that the order/judgment passed by this Hon‟ble Tribunal qua the same respondents on the use of Article 311 (2) (b)of the Constitution of India in OA No. 2091/2021 in the case of Ravinder Singh Vs. GNCTD decided on 17.07.2023. In the said judgment, the Hon‟ble Tribunal has held that this action of the respondents was against the parameters laid down under 6 OA No. 2130/2024 Item No. 19/C-II Article 311 (2) (b) of the Constitution of India and against which, the respondents filed the WP (C) No. 12944/2023, which was dismissed vide order dated 29.04.2024.
9. The applicant states that he made an appeal against the order of punishment of dismissal from service, which was rejected by the Appellate Authority on 11.03.2024 (Annexure- A/2).The order passed by the Appellate Authority is absolutely non-speaking and mechanical in nature. It does not deal with any of the submissions raised within the body of statutory appeal.
10. The applicant has stated that the Appellate Authority while deciding his appeal on 11.03.2024 (Annexure- A/2) did not factor in the position that in two cases in which he was acquitted by the Hon‟ble Courts. He also states that the Appellate Authority has totally missed out the pre-requisite as per Article 311 (2) (b) of the Constitution of India for invoking the power under the said article, therefore, the order of Appellate Authority is bad in law. He contends that the Appellate Authority has blindly supported the reasons put forth by the Disciplinary Authority for dispensing away with the departmental enquiry. The reasons recorded for dispensing away with departmental enquiry are based in suspicion and surmises.
11. In the present Original Application, the applicant has raised the grounds that the reasons recorded by Disciplinary 7 OA No. 2130/2024 Item No. 19/C-II Authority to dispense away with the departmental enquiry are 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.
12. Learned counsel for the applicant has placed reliance on the judgment in the following cases: -
i. The judgment of this Tribunal in OA No. 3201/2016 titled as Yashvir Singh Vs. GNCTD decided on 17.05.2023. He further contends that the aforesaid judgment was challenged by the respondents before the Hon‟ble High Court of Delhi in WP (C) No. 16009/2023, which was dismissed by the Hon‟ble High Court vide order dated 29.04.2024.
ii. The judgment of this Tribunal in OA No. 2091/2021 in the case of Ravinder Singh Vs. GNCTD decided on 17.07.2023,against which, the respondents filed WP (C) No. 12944/2023, which was dismissed vide order dated 29.04.2024.
iii. The recent matter decided on 14.08.2024 by the Hon‟ble High Court of Delhi in W.P. (C) No. 11276/2024 and CM Appl. 46705/2024. CM Appl. 46706/2024 in the matter of The Commissioner of Police & Ors. vs OM Prakash & anr., 8 OA No. 2130/2024 Item No. 19/C-II
13. Feeling aggrieved by the aforesaid act of the respondents, the applicant approached this Tribunal by way of the present OA.
14. Counter reply has been filed by the respondents on 02.09.2024 wherein it is stated that information was received from DCP/Outer Distt. that the applicant has been arrested in a case bearing FIR No. 508/2015 dated 28.07.2015 u/s 365, 284, 419 and 411 IPC, P.S. Bawana, Delhi. The respondents submit that the applicant has also faced arrest in two criminal cases by the local police prior to the case in hand. The first case was registered on the complaint of Sh. Praveen Singh s/o Raj Dev Singh r/o H. No. 177, Nand Vihar, Sector 16-A, Dwarka, New Delhi vide FIR No. 404/13 u/s 323, 341 and 34 IPC on 17.11.2013 at P.S. North Dwarka. The respondents further submit that the complainant alleged that on 17.11.2013, he had arrived from a function and was getting out of his car when the driver of the Mahindra Scorpio (Registration No. DL4CNB9633), which was coming from behind asked him to clear the road. He sought a time of two minutes from them but the occupants of the car came out and physically assaulted him. The respondents contend that the applicant along with one Rajan s/o Deep Chand and one Sunil s/o Balram was arrested in the case. The charge-sheet was filed in the Court. The respondents further submit that the second case was registered on the complaint of Sh. Raj Singh s/o Rishal Singh r/o RZ-64, Baba Haridass Nagar, New Delhi vide 9 OA No. 2130/2024 Item No. 19/C-II FIR No. 299/13 u/Ss. 363 IPC and 12 POCSO Act, 2012 at P.S. Baba Haridas Nagar on 21.11.2013. The complainant had alleged that his daughter (name not revealed) aged 17 went missing on 20.11.2013 and he suspected the role of the applicant in her disappearance. The respondents claim that during the course of investigation, the prosecutrix was found and the applicant was arrested. The respondents further claim that in the statement given by the prosecutrix, it was alleged that the applicant gave her a cold drink laced with intoxicating substance and later raped her. The applicant has been charge-sheeted in the case u/s 363/376/328/34 IPC and 6/12 POCSO Act, 2012. The charge- sheet was filed in the court on24.04.2014. The Applicant was granted bail in the case on14.01.2015.
15. The respondents further submit that the applicant has been found to be involved in three cases. They also mention that the allegations against the applicant are grave in nature. The respondents state that the applicant is already under suspension since 23.11.2013 vide order dated 03.03.2014 for his arrest in case FIR No.299/13. He was apprehended in the uniform of a Sub-Inspector on 28.07.2015 and extorted money was recovered from his possession. The respondents further claim that the conduct of the applicant is unbecoming of a police officer and very serious allegations have been leveled against him. It is further claimed that it is indeed a shameful, degradable and 10 OA No. 2130/2024 Item No. 19/C-II abominable act of moral turpitude. The respondents also mention that he has violated all norms of ethics, morality by indulging himself into such grave crimes and lowered the image of the Police Department in the society which is not acceptable from a Police Officer whose prime duty is toward the common man and to safeguard the spirit of law. The respondents in the counter reply also state that the applicant‟s criminal conduct has also rudely shaken the faith of the citizen in the Police Force. It is further claimed by the respondents that the applicant has acted in the most reprehensible manner which is not at all expected from the member of the force and the same is undoubtedly extremely prejudicial to the personal safety and security of the citizen.
16. The respondents further contend that after such grave misconduct, if the applicant is allowed to continue in the force, it would be detrimental to public interest and further tarnish the image of the police force in the society. The facts and circumstances of the case are such that it would not be reasonably practicable to conduct a regular Departmental Enquiry against the Applicant as there is reason to believe that the witness would not come forward to depose against him due to intimidation, inducement and affiliation of material PWs by the Applicant. It also calls for great courage to depose against the desperate person and that task becomes more acute and difficult 11 OA No. 2130/2024 Item No. 19/C-II where the delinquent is a police officer who may use his job to influence the statement/deposition of the witnesses. Further, an extended enquiry would only cause more trauma to the victims. The respondents confirms that the Disciplinary Authority dismissed the applicant from the police force vide order dated 27.08.2015. His suspension period from 23.11.2013 to the date of issue of dismissal orders was also decided as period „not spent on duty‟ for all intents and purposes.
17. The respondents submit that the order of Dismissal by the Disciplinary Authority and the appeal order passed by the Appellate Authority are correct, legal and justified and have not violated any norms. It is further admitted by the respondents in their counter reply that the misconducts of the applicant are of such grave nature that warrants an exemplary punishment of dismissal, in order to send a clear message to such undesirable person and to prevent the recurrence of such crimes. Assessing totality of the facts and circumstances of the case as mentioned above, the Disciplinary Authority had opined that the acts and grave misconduct of the Applicant attract the provisions of Article 311(2) (b) of the Constitution and make him completely unfit for police service. Thus, the Disciplinary Authority dismissed the applicant from the police force vide order dated27.08.2015. His suspension period from 23.11.2013 to the 12 OA No. 2130/2024 Item No. 19/C-II date of issue of dismissal orders was also decided as period not spent on duty for all intents and purposes.
18. The respondents submit that in case of FIR No. 404/13 (U/Ss. 323/341/34 IPC), the judgment passed by the Hon'ble MM-06, Dwarka Court, Sh. Rajinder Singh vide order dated 27.08.2016, the order itself clears the commission of offense as the parties were allowed to compound the case being compoundable in nature. Hence, the plea taken by the Applicant that he has been acquitted of the said offence on merit is wrong and misleading. His acquittal was done on technical grounds only.
19. The respondents further submit that in case of FIR No. 508/15 (u/Ss. 365/384/419/411/34 IPC), the judgment passed by the Hon'ble MM-05, Distt. -North, Rohini Court, Delhi (Presided by Sh. Vinod Joshi, DJS) dated 29.08.2023. The Court clearly mentioned that the charges against the accused cannot be proved due to hostile testimonies of the prosecution witnesses and thus acquittal of the accused persons. The possibility of pressure upon the witnesses to turn them hostile cannot be ruled out as the accused Ex-HC has number of cases registered against him with the serious criminal allegations and was out on bail. Thus, the acquittal of the accused persons simply on technical grounds, as the prosecution failed to prove the charges beyond any shadow of doubt, cannot be a reason for acceptance of 13 OA No. 2130/2024 Item No. 19/C-II appeal. Moreover, the court of law had framed charges against him u/Ss. 365/384/34IPC which are serious criminal offence and such behavior cannot be accepted on the part of a police officer. The order itself clears the commission of offence as the parties were allowed to compound the case since the case was compoundable in nature. Hence, the plea taken by the applicant that he has been acquitted of the offence is not acceptable. His acquittal was done on technical grounds only.
20. The respondents also submit that in case registered of FIR No. 299/13, the charge-sheet filed in the court and the material available on the case file clearly establishes the commission of offense by the applicant. The acceptance of his criminal act in the form of self-declaration statement (Fard Inksaaf) corroborates the alleged criminal charges against him and his associate. The Dismissal Order passed by the Disciplinary Authority and the appeal order passed by the Appellate Authority are correct, legal and justified.
21. The respondents also mention that the applicant took plea of other cases to take advantage in his case, which is not right. The Dismissal Order passed by the Disciplinary Authority and the appeal order passed by the Appellate Authority are correct, legal and justified.
22. We have heard learned counsels for the parties and have perused the pleadings available on record. The learned counsel 14 OA No. 2130/2024 Item No. 19/C-II for the respondents pleaded that the respondents have given detailed justification of invocation of the Article 311 (2) (b) of the Constitution of India in their Disciplinary order and Appellate order. They repeatedly stated that further continuation of the applicant in disciplined force like Delhi Police which is responsible for protecting the society and citizens of the country from immoral and disrespectable activities, will rudely shake the faith of the citizens in Delhi Police Force. The applicant has acted in a manner which is highly unbecoming of Police Officer. Therefore, keeping in view the position in the matter, respondents have resorted to invocation of Article 311(2) (b) of the Constitution of India and dismissed the applicant from the government service.
23. The Disciplinary Authority while issuing punishment order dated 27.08.2015 (Annexure-A/1) has invoked the provisions of Article 311 (2) (b) of the Constitution of India and dismissed the applicant from service. For facility of reference, the relevant portion of the disciplinary order is as follows: -
"The conduct of HC Manoj Rana No. 4253/T is unbecoming of a police officer and very serious allegations have been leveled against him. It is shameful, most degradable, abominable and disgusting act of moral turpitude. He has violated all norms of ethics and morality by indulging himself into such grave crimes. He has lowered down the image of police Department in the society. He has lowered down the image and goodwill of uniformed organization which is not acceptable from a Police Officer whose prime duty/responsibility is to protect the common citizen and safeguard the spirit of law. His criminal conducts have also rudely shaken the faith of the citizen which they have on police force and its members. He has acted in a most reprehensible manner which is not at all expected from the 15 OA No. 2130/2024 Item No. 19/C-II member of the disciplined force and same is undoubtedly extremely prejudicial to the personal safety and security of the citizen.
After having committed above three gravest misconducts, if the defaulter HC Manoj Rana No. 4253/T is allowed to continue in the Police force, it would be detrimental to public interest and further tarnish the image of police force in the society. The facts and circumstances of the cases are such that it would not be reasonably practicable to conduct a regular departmental enquiry against the defaulter HC Manoj Rana No. 4253/T as there is a reasonable belief that the witnesses would not come forward to depose against him due to intimidation, inducement and affiliation of material PWs by the accused HC. It also calls for great courage to depose against desperate person and that task becomes more acute and difficult where the delinquent is police official who may use his job to influence the statement/deposition of the witnesses. Further an extended enquiry would only cause more trauma to the victims.
The misconducts of the accused HC Manoj Rana: No. 4253/T are of such a grave nature that warrant an exemplary punishment of dismissal, in order to send a clear message to such undesirable person and to prevent the recurrence of such crimes. Assessing totality of the facts and circumstances of the case as mentioned above, I am of the firm opinion that the acts and grave misconducts of the accused HC Manoj Rana No.4253/T attract the provisions of Article 311 (2) (b) of the Constitution of India and make him completely unfit for police service.
Therefore, 1, R.K. Jha, Deputy Commissioner of Police, Traffic, HQ, New Delhi do hereby dismiss the defaulter HC Manoj Rana No. 4253/T from Delhi Police, with immediate effect under Article 311(2)(b) of Constitution of India. His suspension period from 23.11.2013 to the date of issue of this order is decided as period not spent on duty for all intents and purposes."
24. The applicant has stated that he had filed an appeal against the punishment order, neither a copy of appeal nor date of filing the said appeal has been mentioned in the OA. However, Appellate Authority vide order dated11.03.2024 (Annexure-A/2) decided his appeal. For facility of reference, it would be appropriate to quote the relevant portion of the appellate order, the same reads as under:-
"Aggrieving with the said orders, the appellant has filed this appeal before the appellate authority to quash and set aside the 16 OA No. 2130/2024 Item No. 19/C-II said orders by giving all consequential benefits. The appeal is within the time limit.
I have carefully considered the appeal in the light of facts & circumstances of the case, material appeal on file and also heard him in person. Today, i.e. 21/02/2024 the appellant Ex- HC Manoj Rana appeared before the undersigned in O.R. and submitted his version i.e. he was dismissed from service without giving him a chance of defence as 03 false criminal cases were got registered against him. He further, submitted that he has been acquitted in 02 cases out of the total 03 criminal cases and one is still pending trial before the court of law and requested to reinstate him in service.
Perusal of the record placed on file; the status of the criminal cases registered against him is as under: -
1. CASE FIR No. 508/15 u/s 365/384/419/411/34 IPC Police Station Bawana, Delhi: - The appellant submitted that he has been acquitted from the charge framed against him vide the judgement issued by the MM-05, District- North, Rohini Court, Delhi (Presided by Sh. Vinod Joshi, DJS) dated 29.08.2023.
The undersigned have gone through the judgment announced by the Hon'ble Court of law and it was found that the appellant Ex- HC Manoj Kumar was acquitted of the offence by the court. The concluding para of the judgement is reproduced as under: -
"In view of the hostile testimony of PW-1 Ashish Garg, Pw-2 Gaurav Aggarwal, PW-3 Navin and PW-4 Kuldeep, the prosecution cannot prove the offense u/s 365/384/34 IPC against the accused persons. The remaining eyewitness Chander Prakash was dropped as he was untraceable even after issuance of summons through DCP concerned. Therefore, in view of hostile testimony of the witnesses and the fact that the eye witnesses have resiled from their earlier testimony/ statements, the offense of u/s 365/384/34 IPC cannot be proved. Therefore, this court does away with the necessity to recording testimonies formal prosecution witnesses and recording, statement of accused persons (SA) and acquits the accused Rajesh S/o Sh. Deep Chand, Rajesh S/ o Sh. Suraj Bhan, Deepak S/o Sh. Om Parkash and Manoj S/o Sh. Satbir Singh of charges u/s 365/384/34 IPC Act."
In the instant case court has clearly mentioned that the charges against the accused persona cannot be proved due to hostile testimonies of the prosecution witness and thus acquittal of the accused persona. The possibility of pressure upon the witnesses to turn them hostile cannot be ruled out as the accused Ex.HC has numbers of cases registered against him with the serious criminal allegations and was out on bail. Thus, the acquittal of the accused persons just because of technical grounds, as the prosecution failed to prove the charges beyond any shadow of doubt, cannot be a reason for acceptance of appeal. Moreover, the court of law had framed charges against him u/s 365/384/34 17 OA No. 2130/2024 Item No. 19/C-II IPC Act which are serious criminal offense and such behavior can not be accepted on the part of a police officer.
2. Case FIR No. 404/13 u/s 323/341/34 IPC Act, PS Dwarka North: The judgement order dated 27/08/2016 by the Hon'ble MM-06, DwarkaCourt, Sh. Rajinder Singh speaks as under:-
"In view of the statements of the complainant / victim the offense u/s 323/341/34 IPC was allowed to be compounded. Accordingly, both the accused persons are acquitted of the offense u/s 323/341/34 IPC."
The order itself clears the commission of offense as the parties were allowed to compound the case being compoundable in nature. Hence, the plea taken by the appellant that he has been acquitted of the offense is not acceptable. His acquittal was done on the technical grounds only.
3. Case FIR No. 299/13 u/s 363 IPC and 12 POCSO Act, PS Baba Haridas Nagar, Delhi:- Initially the case was registered against the appellant Ex-HC Manoj Kumar u/s 363 and 12 POCSO Act and after investigation of the case the charge-sheet was filed against him and his associate in crime u/s 363/342/366/328/376/368 IPC and 6/12 POCSO Act as there were sufficient evidence against them to frame the charges. Moreover, the accused has himself accepted the commence of criminal offence and given signed statement during the investigation. Similarly, the victim has also confirmed the commission of crime with her by the defaulter Ex-HC Manoj Kumar in the statement given u/s 164 Cr. PC before the Hon'ble Court at Dwarka, Delhi. The case is still pending trial and the NDOH is fixed for 02.03.2024.
The charge-sheet filed in the Hon'ble Court of law and the material available on the case file clearly establishes the commission of offense bydefaulter Ex-HC Manoj Kumar. The acceptance of his criminal act in the form of self-declaration statement (Fard Inksaaf) corroborate the alleged criminal charges against him and his associate.
I have also gone through the para wise comments provided by the disciplinary authority wherein the point wise comments have been given and concluded as under: -
"The contentions raised in the rest of para need no specific reply as the same is repeated one. However, keeping in view of the fact of the case and detail discussion in the forgoing paras, the applicant is not entitled for any relief sought in his prayer and the appeal by the applicant is liable to be rejected being devoid of merits."
I, Geeta Rani Verma, IPS, Addl. Commissioner of Police, Traffic (HQ) agrees with the conclusion of the disciplinary authority and doesn't find any reason to interfere with the decision of the 18 OA No. 2130/2024 Item No. 19/C-II disciplinary authority for the punishment of dismissal from service awarded to the appellant defaulter Ex-HC Manoj Rana, No. 4253/T (PIS No. 28981575). Hence, the appeal is rejected."
25. The applicant, in his pleadings, has stated that he has filed an appeal, however, he has neither placed a copy of the same on record nor has he intimated the date of filing of his appeal. However, the appeal has been decided by the Appellate Authority on 11.03.2024 (Annexure-A/2). It has also mentioned in the appellate order that the appeal is within the time limit.
26. Based on the material available before them, the Disciplinary Authority and the Appellate Authority have come to the decision on the presumption that alleged offence has been committed by the applicant, so there is no need to conduct the departmental enquiry, these reasons cannot stand to the scrutiny of law for invoking the power under provision of Article 311(2) (b) of the Constitution of India. It needs to be tested whether the reasons recorded in the impugned order for imposition of Article 311 (2) (b) of the Constitution of India are justifiable or the provisions of above-mentioned Articleof 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. It could be seen from the appellate order that Appellate Authority had rejected the appeal after going through the judgment of the learned courts in two cases. Hence, the assertion of applicant, the Appellate Authority 19 OA No. 2130/2024 Item No. 19/C-II issued appellate order when the applicant had already been acquitted in two criminal cases, is not correct. Appellate Authority has deliberated upon the orders of issued by the Hon‟ble Courts while issuing the appellate order and has finally issued the appellate order.
27. In the recent matter decided on 14.08.2024 by the Hon‟ble High Court of Delhi in W.P. (C) No.11276/2024 and CM Appl. 46705/2024. CM Appl. 46706/2024 in the matter of The Commissioner of Police & Ors. vs OM Prakash & anr., wherein the Commissioner of Police has been directed by the 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 or on the ground that it was not reasonably practicable to conduct regular departmental enquiry as witness might not come forward to depose against a police officer and Appellate Authority having rejecting the appeal, could be construed as bad in law.
28. It is apparent that the Disciplinary Authority has assumed as if the allegations made in criminal cases (FIRs) already stand proved and thus with these presumptions, the present impugned order has been passed. Once the order of Disciplinary Authority is based on assumption as if the allegations made against the 20 OA No. 2130/2024 Item No. 19/C-II applicant already stand proved that too on the content of FIR, the same act is enough to vitiate the order of Disciplinary Authority as the same being bad in law as being based on assumptions, suspicion and surmises. Further, the Disciplinary Authority is assuming that the offence has been committed by the applicant. Under this assumption, the present order of Disciplinary Authority is being passed invoking Article 311(2) (b) of the Constitution of India. There are circulars, judgment of judicial forums which clearly states that if the allegations are grave then more opportunity should be provided to the delinquent official to put forward his defense. The applicant has not been subjected to a 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 that witnesses would not come" 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 a number of witnesses are official witness in 21 OA No. 2130/2024 Item No. 19/C-II criminal case; once the criminal trial is possible, then departmental enquiry is also possible.
29. The applicant is Head Constable in Delhi Police. It is a lower rank among the subordinate officer thus it is absolutely wrong to record that applicant is in position to influence or threaten any witness. There is no admissible material or evidence before the authorities to conclude that the witness is threatened or intimidating or will not depose in the departmental enquiry and thus reasons recorded for dispensing the Departmental Enquiry under Article 311 (2) (b) of the Constitution of India are not tenable. As stated above, the applicant is onlyHead Constablein Delhi Police, if as per the allegations, the case of the department is so good on merit then come what may the applicant should be given a chance to put forward his defense in disciplinary enquiry.
30. In the public interest and even as per Rule of law, it was incumbent upon the authorities not to put to use Article 311(2)(b) of the Constitution of India in present case and to give opportunity to the applicant to put forward his defence in the departmental enquiry. The gravity of misconduct alleged in the present case cannot be a ground to invoke the power under Article 311(2)(b) of the Constitution of India. The applicant as per rule of law must be given opportunity to put forward his defence in regular Departmental Enquiry until and unless the same is not reasonably practical. The reasons recorded in present impugned 22 OA No. 2130/2024 Item No. 19/C-II order to dispensing with the Departmental Enquiry are just not tenable in the eyes of law. Article311(2)(b) of the Constitution of India has been used as a short cut method.
31. 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, the onus to establish that such a 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, while taking no action to conduct disciplinary enquiry and citing reasons as giving threat to witnesses etc., are the reasoning based on mere probability, suspicion and surmises. There was no material placed before the authority to come on to this conclusion and to invoke Article 311(2)(b) of the Constitution of India.
32. The power under Article 311(2)(b) of the Constitution of India has been invoked. The reason for dispensing the departmental enquiry is on suspicion and surmises. Further, in the cases in which even preliminary enquiry is being conducted but in absolute violation of circular dated 11.09.2007 and straightaway the Disciplinary Authority passed an order under Article 311(2)(b) of the Constitution of India is in violation of circular dated 11.9.2007 which was framed by department in 23 OA No. 2130/2024 Item No. 19/C-II pursuance of judgment of Hon'ble Tribunal in case of Suresh Kumar Vs. GNCTD in O.A. No. 2500/2006.
33. The reasons recorded by the respondent authorities to dispense away with the departmental enquiry do not withstand the scrutiny of law. The so-called reasons recorded by the authorities in the impugned orders to invoke the power under the Article 311 (2) (b) of the Constitution of India are only to avoid the departmental enquiry. It is a well settled law that without conducting any departmental enquiry, if the finding of guilt against the applicant has been arrived on to, the same act is enough to vitiate the order of the disciplinary authority. There is a finding of guilt against the applicant without conducting the Departmental Enquiry and further not even giving the opportunity to the applicant to put forward his defence and the same is enough to vitiate the order of the disciplinary authority. The authorities failed to consider that no substantial material has been collected to come on to a conclusion that witness will be discouraged to appear in a D.E. Thus, the order of the authorities establishes non-application of mind, bias, arbitrariness and to adopt a short cut method of dismissing the applicant by invoking the power under Article 311 (2)(b) of the Constitution of India only keeping in mind the gravity of the allegations.
34. The applicant preferred an appeal against the punishment order of dismissal dated 27.08.2015 (Annexure-A/1). The 24 OA No. 2130/2024 Item No. 19/C-II Appellate Authority rejected the appeal on 11.03.2024(Annexure- A/2). The Appellate Authority took around 9 (nine) years to decide the appeal and even after such a long time it miserably failed to apply its mind that the reasons recorded for dispensing with the DE are not legally tenable in the eyes of law. The Hon'ble Apex court has clearly laid down that the gravity of the charge will not be a tilting factor in deciding whether a Departmental Enquiry is a reasonably practicable or not. The graver the charge the opportunity to defend him should be more.
35. We have examined the law laid down by the Courts/Tribunals on this subject matter in the order dated 13.12.2023 passed by this Tribunal in the case of Dushyant Kumar Vs. Govt. of NCT of Delhi & Ors. The relevant portion of the same is reproduced below: -
"8. A catena of cases of the Orders/Judgments of the Hon'ble Supreme Court, Hon'ble High Court of Delhi and of this Tribunal on the issue as involved in the present case were also considered by the Division Bench (consisting one of us) while deciding the case of Ct. Sumit Sharma (supra).
9. Having regard to the above, we have carefully perused the impugned order(s), we find that nothing has been recorded in the impugned order(s) or shown to us that the applicant had ever threatened or harassed any of the witness (es) and/or the prospective witness (es). From the impugned orders, it is also evident that neither any effort was made by them to conduct an enquiry, nor there is any evidence that despite their best efforts, the respondents would not have been able to produce the witness (es) to lead evidence against the applicant. Further 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 25 OA No. 2130/2024 Item No. 19/C-II 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 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."
36. 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 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 26 OA No. 2130/2024 Item No. 19/C-II 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."
37. In the order dated 16.04.2024 passed in OA Nos. 542/2023 &591/2023 in the case of Deepak vs. Govt.of NCT of Delhi &Ors by this Tribunal. The Tribunal held as under: - 27 OA No. 2130/2024
Item No. 19/C-II "20. In the present case, as apparent from the reasons recorded by the respondents in the impugned order, it is apparent that the respondents have arrived at the conclusion for dispensing with the regular inquiry due to the involvement of the applicants in a grave and serious case. The respondents have jumped to the conclusion that on account of serious allegations, the applicants have become ineligible to be continued in police force. There is no finding that the 24 applicants and/or anybody on their behalf have at any point of time even attempted to influence or coerce any of the witness. Even there is no finding that the applicants in the captioned OAs who are very junior officers under the respondents were in a position to influence the witnesses who are generally senior officials working in the Government of India and particularly in CBI. It is also nowhere recorded by the respondents as to how if not only preliminary inquiry was found possible, but also the criminal trial is possible in the said case FIR with the support of more than nineteen witnesses and at no point of time the prosecution has even felt that those witnesses are not likely to turn up and regular inquiry was not possible in the matter. It is undisputed that regular inquiry is a Rule whereas dispensing with the same is only an exception. Though the respondents have recorded that if regular inquiry is initiated, the same is liable to take a long time, however, no reason has been given for the same and it is apparent that such reasoning and finding is based on surmises and conjectures.
21. In view of the aforesaid, we find that the impugned orders are not sustainable in the eyes of law. Accordingly, the OAs are allowed with the following order(s) :- (i) impugned orders dated 10.08.2022 and 25.01.2023 are set aside. The applicants shall be reinstated in service forthwith. (ii) the applicants shall be entitled for all consequential benefits in accordance with relevant rules and instructions on the subject. (iii) the aforesaid directions shall be complied with by the respondents as expeditiously as possible and preferably within a period of eight weeks from the date of receipt of a copy of this order. (iv) the respondents shall be at liberty to initiate disciplinary proceedings against the applicants if they are so advised, of course in accordance with rules and instructions on the subject.
22. However, in the facts and circumstances of the case, there shall be no order as to costs."
38. In Writ Petition (C) No. 1258/2023 & CM App. No.4759/2023 in the case of Commissioner of Police Delhi Police & Ors. Vs. Manjeet; the Hon‟ble High Court of Delhi vide its judgement dated 22.04.2024 has held asunder: -
"9. A bare perusal of the aforesaid reasons contained in the dismissal order makes it clear that the primary reason for the 28 OA No. 2130/2024 Item No. 19/C-II petitioners not holding any enquiry against the respondent was that due to seriousness of the offence alleged to have been committed by him it would not be reasonably practicable to conduct a regular departmental enquiry. It also emerges that on the basis of the allegations levelled against the respondent in the FIR coupled with the findings of the preliminary enquiry, the petitioners presumed that the respondent was guilty of a serious offence and therefore deserve to be dismissed at the earliest. This in our considered view, as has been rightly held by the learned Tribunal, could not be treated as a ground to reach a conclusion that it was not reasonably practicable to hold an enquiry against the respondent. The petitioners have sought to dispense with the enquiry in such a casual manner and that too only on the basis of a perceived notion that the respondent being a police personnel, an enquiry against him was likely to be difficult on account of his influence. This course of action is clearly violative of Article 311(2) (b) of the Constitution of India.
10. We have also considered the decision in Dushyant Kumar (Supra) and find that in the said case, this Court had rejected a similar challenge by the petitioners to the Tribunal's quashing of a dismissal order passed after dispensing with the enquiry. In fact, this Court after considering the circulars dated 21.12.1993 and 11.09.2007 issued by the petitioners themselves, observed that despite there being a requirement to record cogent reasons to dispense with the enquiry, the petitioners were passing cryptic orders dispensing with the enquiry in the most mechanical manner.
11. No doubt, the respondent is a police personnel and any misconduct on his part is liable to be dealt with appropriately.
This, however, does not imply that the petitioners could, on the basis of the gravity of the charges levelled against him, with an enquiry on absolutely vague grounds. As noted hereinabove, the petitioners have given no reason whatsoever in the impugned order for dispensing with the inquiry. The impugned order of dismissal proceeds on the basis that the respondent's guilt had already been proved in the preliminary enquiry. Furthermore, it is not as if the respondent has been let off without any departmental action being taken against him, as the learned Tribunal has already granted time to the petitioners to initiate departmental proceedings against him as per law.
12. For the aforesaid reasons, we find no reason to interfere with the impugned order. The writ petition being meritless is dismissed along with all applications.
13. Before we conclude, we are constrained to observe that in a large number of petitions filed by the Commissioner of Police which are coming up before this Court, we are finding termination orders are being passed by the petitioners by dispensing with departmental enquiries in a most mechanical manner without recording any valid reasons. We, therefore, direct that a copy of this order be placed before the Commissioner, Delhi Police to ensure that in future, enquiries are not dispensed with without assigning justifiable reasons." 29 OA No. 2130/2024 Item No. 19/C-II
39. In other Writ Petition (C) No.4201/2024 on 20.03.2024 in case of Commissioner of Police and anr. Vs. Jagmal Singh. The Hon‟ble High Court of Delhi has held as under:-
"10. From a perusal of the aforesaid, we find that the petitioners have proceeded to dispense with the enquiry against the respondent only because of the grave nature of allegations levelled against him and have simply observed that since the respondent had lowered the image of the police department and goodwill of a uniformed organisation, an exemplary punishment of dismissal ought to be imposed upon him so as to send a clear message to undesirable persons and to prevent reoccurrence of such crimes. In the light of the aforesaid, we find absolutely no reason to differ with the conclusion arrived at by the learned Tribunal that the dismissal order passed by the petitioners did not contain any justifiable reason whatsoever for dispensing with the enquiry. What clearly emerges is that the petitioners have proceeded on the premise that such police officers, who are charged with serious misconduct, should be immediately dismissed from service. This approach, in our view to dispense with an enquiry, would not meet the parameters laid down under Article 311(2) (b) of the Constitution of India.
11. At the cost of repetition, we may reiterate that merely because the respondent was a police personnel, would not entitle the petitioners to give a complete go-bye to the requirement of holding a departmental enquiry against him without recording any justifiable reasons as to why departmental enquiry could not be held against him.
12. For the aforesaid reasons, we find no infirmity with the impugned order. The writ petition, being meritless, is along with accompanying application, dismissed."
40. In the Special Leave to Appeal (C) No. 11681/2024 filed by the Commissioner of Police & Anr. Vs. Jagmal Singh, The Hon‟ble Apex Court vide its judgment on 10.07.2024 has dismissed the said SLP and the judgment of Hon‟ble Court of Delhi attained finality.
41. In another matter, the Hon‟ble High Court of Delhi in W.P. (C) No. 5562/2024, CAV 181 /2024 CM Appl. 22929/2024 vide its 30 OA No. 2130/2024 Item No. 19/C-II judgment dated 23.04.2024 in the case of Commissioner of Police and ors. Vs. Sant Ram, the Hon‟ble High Court of Delhi in paras9 to 12 has held as under: -
"9. A bare perusal of the aforesaid reasons contained in the dismissal order makes it clear that the primary reason for the petitioners not holding any enquiry against the respondent was their presumption that the respondent would threaten or intimidate the complainant and other witnesses. The petitioners were further of the view that a prolonged enquiry would cause more trauma to the complainant. It is also evident from the dismissal order that the petitioners had, on the basis of the evidence led in the preliminary enquiry, already made up their mind that the respondent was guilty of serious misconduct and had lowered the image of the police force in the eyes of the public.
10. In our considered view, even though the charges against the respondent are very serious and the interest of the complainant deserves to be protected, it does not imply that the principles of natural justice as also the provisions of section 11 of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 should be given a complete go by on the basis of mere presumptions. Only because the respondent is a police personnel, would in our view, not be a ground either to presume that the witnesses will not come forward to depose against him in a regular enquiry or to hold him guilty without conducting the statutorily prescribed departmental enquiry and that too in a matter like the present where the complainant and the witnesses are also police personnel. In fact, what emerges is that on the basis of the report of the preliminary enquiry itself, the petitioners presumed that the respondent was guilty of serious misconduct and therefore deserved to be dismissed at the earliest. This in our considered view, as has been rightly held by the learned Tribunal, could not be treated as a ground to reach a conclusion that it was not reasonably practicable to hold an enquiry against the respondent. This course of action, in our considered opinion, was clearly violative of Article 311(2)(b) of the Constitution of India.
11. No doubt, the respondent is a police personnel and any misconduct on his part is liable to be dealt with appropriately. This, however, does not imply that the petitioners could, on the basis of the gravity of the charges levelled against him, dispense with the requirement of an enquiry on absolutely vague grounds. As noted hereinabove, the petitioners have given no reason whatsoever in the impugned order for dispensing with the inquiry. The impugned order of dismissal proceeds on the basis that the respondent's guilt had already been proved in the preliminary enquiry and had also been admitted by him. We therefore have no hesitation in agreeing with the learned Tribunal that the petitioners have dispensed with the enquiry only on the basis of a perceived notion that the respondent being 31 OA No. 2130/2024 Item No. 19/C-II a police personnel, would threaten the witnesses and holding of an enquiry would cause trauma to the complainant. Furthermore, we find that it is not as if the respondent has been let off without any departmental action being taken against him. As is evident from the impugned order, the learned Tribunal, while setting aside the dismissal order, has granted time to the petitioners to initiate departmental proceedings against him as per law.
12. For the aforesaid reasons, we find no reason to interfere with the impugned order. The writ petition being meritless is dismissed along with all accompanying applications."
42. In pursuance to the order of this Tribunal in OA No.14/2018 titled as Sant Ram vs. Commissioner of Police and the judgment of the Hon'ble High Court of Delhi in W.P. (C) 5562/2024, CAV 181/2024 CM Appl. No.22929/2024, the respondents reinstated the services of the applicant Shri Sant Ram in that case. The order dated 26.07.2024 is reproduced as under: -
"In pursuance of judgment dated 06.02.2024 passed by the Principal Bench of Hon'ble Mr. R.N. Singh, Member (J) & Hon'ble Mr. Sanjeeva Kumar, Member (A), Central Administrative Tribunal, New Delhi in 0.A. No.14/2018 titled Sant Ram Vs. Commissioner of Police, Delhi & Ors. and judgment dated 23.04.2024 passed by the Hon'ble Ms. Justice Rekha Palli & Hon'ble Mr. Justice Saurabh Banerjee, High Court Delhi in W.P.(C) No.5562/2024, CAV 181/2024, CM Appl.22929/2024 - Stay, CM Appl. 22930/2024 - Ex./LLOD titled Commissioner of Police & Ors. Vs. Sant Ram as well as opinion of Ms. Aishwarya Bhati, Ld. Addl. Solicitor General of India that "this is not a fit case for filing of SLP", the order of the disciplinary authority passed vide No.1833-1900/HAP/PTC (P-II) dated 01.08.2017 vide which Const. (Exe.) Sant Ram, No.324PTC (PIS No.28060573) was dismissed from the Delhi Police force under Article311(2(b) of Constitution of India deciding his suspension period as period not spent on duty and the order passed by the Appellate Authority vide No.106-66/SO/Jt.C.P/Trg, dated 03.11.2017 rejecting his appeal, are set aside. Accordingly, Const. (Exe.) Sant Ram, No.324/PTC (PIS No.28060573) is hereby re-instated in service from dismissal with immediate effect without prejudice to the further departmental action to be taken against him in accordance with the law.32 OA No. 2130/2024
Item No. 19/C-II He is deemed to be under suspension from the date of his dismissal as he had already been placed under suspension vide D.D.No.29-A/PTC/JK dated 22.07.2017 and formal issued vide order No.1738-70/HAP/PTC (DA-II) dated 26.07.2017. His dismissal/suspension period will be decided later on."
43. In other judgment of the Hon‟ble High Court of Delhi in Writ Petition (C) No.1258/2023 & CM Appl. No. 4759/2023 in case of Commissioner of Police, Delhi vs. Manjeet, the following circular was issued by the Office of Commissioner of Police as under:-
"No. 174/C/HC/24 5110-60 DA-III/Court Cell/PHQ dated 13.05.2024 To The Deputy Commissioner of Police, All District including Units, New Delhi.
Sub: W.P. (C) No. 1258/2023 & CM Appl. No. 4759/2023 in the matter of Commissioner of Police, Delhi vs. Manjeet.
Memo Enclosed please find here with a copy of letter No. 10264/W/DHC/ Writs/D-9/2023 dated 26.04.2024 received from the Registrar General, Delhi High Court alongwith copy of the order dated 22.04.2024 wherein the Hon'ble has observed that " in large number of petitions filed by the Commissioner of Police which are coming up before the this Court, we are finding termination orders are being passed b y the petitioners by dispensing with departmental enquiries in a most mechanical manner without recording any valid reasons. We, therefore, direct that a copy of this order be placed before the Commissioner of Police, Delhi to ensure that in future, enquiries are not dispensed with without assigning justifiable reasons.
It is, therefore, requested that the aforementioned directions of the Hon'ble High Court of Delhi shall be taken into consideration before passing termination orders by dispensing with the departmental enquiries in future.
This issues with the approval of Commissioner of Police, Delhi.33 OA No. 2130/2024
Item No. 19/C-II (Hareesh H.P) Deputy Commissioner of Police Legal Division/ PHQ, Delhi"
Relying upon the circular issued on 11.09.2002, a similar order was passed by the respondents in the OA No. 1088/2021 as under:-
"The respondents, after considering the provisions of Article 311(2)(b) of the Constitution of India and the judgment of the Hon'ble Apex Court in the case of Tulsiram Patel (supra) and the Order(s)/Judgment(s) passed by this Tribunal have issued another circular dated 11.9.2007 (Annexure A/13 of the rejoinder filed in OA 467/2020). In the said circular, they have emphasized that the disciplinary authority should pass a speaking order(s) based and supported by material/facts on record for dispensing with prior inquiry and before passing such order(s), the disciplinary authority should be satisfied that it is not practicable to hold an inquiry in view of threat, inducement, intimidation, affiliation with criminals etc. and the disciplinary authority has no option but to resort to Article 311(2)(b) of the Constitution of India. The said circular dated 11.9.2007 reads as under:-
"CIRCULAR No. /2007 An analysis has been done by PHQ in 38 cases pertaining to the period between 1.1.2000 to 31.12.05 where action under Article 311 (2) (b) of the Constitution of India was taken against the defaulters. The analysis shows that out of the 38 cases, the action of the department has been upheld by CAT only in two cases and out of these two cases and only one case action was upheld by the Hon'ble High Court of Delhi and most of these cases have been remanded back in the Department by the Tribunal for initiating departmental inquiry.
Though some cases are still pending in the Hon'ble High Court for decision, in a majority of cases, Disciplinary Authorities have resorted to Article 311 (2) (b) on assumptions and conjectures. No speaking orders were passed based on and supported by material/facts on record for dispensing with prior enquiry. Orders for dismissal were passed arbitrarily violating Article 311 and the principles of natural justice.
Henceforth, it has been decided that whenever any Disciplinary Authority intends to invoke Article 311 (2) (b) of the Constitution of India, he must keep in mind the judgment in the case of UOI v. Tulsi Ram Patel, AIR 1985 SC 1416. Only in cases where Disciplinary Authority is personally satisfied on the basis of material available on file that the case is of such a nature that 34 OA No. 2130/2024 Item No. 19/C-II it is not practicable to hold an enquiry in view of threat, inducement, intimidation, affiliation with criminals etc. and keeping in view of specific circumstances of the case it is not possible that PWs will depose against the defaulter and disciplinary authority has no option but to resort to Article 311 (2) (b) should such an action be taken. Prior to such an order, a PE has to be conducted and it is essential to bring on record all such facts. It has also been decided that before passing on order under Article 311 (2) (b) of the Constitution of India, Disciplinary Authority has to take prior concurrence of Spl. CP/Admn.
This has the approval of C.P., Delhi.
Sd/-
(S.N. SRIVASTAVA) JT. COMMISSIONER OF POLICCE:
HDQRS,: DELHI"
44. The orders of respondent authorities mentioned in para 45 above lays down that prior to issuance of orders under Article 311 (2) (b), a PE has to be conducted and it is essential to bring on record all such facts. They further state that it has also been decided that before passing on order under Article 311 (2)
(b) of the Constitution of India, Disciplinary Authority has to take prior concurrence of Spl. CP/Admn. In this case, a close examination of the impugned orders dated 27.08.2015 (Annexure-A-1) of disciplinary authority and order dated 11.03.2024 (Annexure-A-2) of appellate authority reveal that neither any preliminary inquiry was conducted nor prior concurrence of Spl. CP/Admn was obtained to invoke the provisions of Article 311 (2) (b) of the Constitution of India. The only purpose to highlight this point is that the respondent authorities are most reluctant to follow their own circulars. Even if the respondents would have ensured compliance to the 35 OA No. 2130/2024 Item No. 19/C-II above two parameters [i.e. conducted preliminary inquiry and obtained prior concurrence of Spl. CP/Admn before invoke the powers of Article 311 (2) (b)], then also the impugned orders would have been held to be not in consonance with the law laid down for imposition of provisions of Rule 311 (2) (b) of the Constitution of India.
45. The Hon‟ble High Court of Delhi in WP (C) No. 11276/2024 and CM Appl. No.46705/2024, CM Appl. No. 46706/2024 in the matter of The Commissioner of Police & Ors. vs. OM Prakash & Anr. decided on 14.08.2024 has taken a serious cognizance of the order passed by the Disciplinary Authority in which Delhi Police resorting to invocation of Article 311(2) (b) of the Constitution of India. For facility of reference, the relevant portion of above-mentioned judgment is as follow: -
"20. Accordingly, finding no error in the impugned order passed by the learned Tribunal, the present petition is dismissed.
21. Before parting with this matter, we hereby direct the Commission of Police Delhi to personally look into such matters and take proper decision so that Courts/Tribunals are not burdened with a case where departmental inquiries can be initiated. We hereby make it clear that if such like petitions are filed in future wherein dismissal or suspension orders are passed without holding any enquiry without any plausible reasoning, certainly heavy cost will be imposed and that too, will be recovered from the Officer, who takes such type of unwarranted decision.
22. A copy of this order be transmitted to the Commissioner of Delhi Police for information and compliance."36 OA No. 2130/2024
Item No. 19/C-II
46. Order dated 27.08.2016 passed by Sh. Rajinder Singh, MM- 06/SW/Dwarka Courts reads as under: -
"In view of the statements of the complainant/victim the offences u/s 323/341/34 IPC are allowed to be compounded. Accordingly, both the accused persons are acquitted of the offences u/s 323/341/34 IPC.
Bail Bonds cancel sureties discharged."
47. It is clear from the order that based on the statements of the complainant/victim the offences were allowed to be compounded. Accordingly, both the accused persons are acquitted of the offences. Hence, the plea taken by the appellant that he has been acquitted of the offense is not acceptable. His acquittal was done on the technical grounds only.
48. In another case, the Order/judgment dated 29.08.2023 passed by Sh. Vinod Joshi, DJS, Rohini Courts, Delhi reads as under: -
"9. Since, the star witnesses of the prosecution i.e. PW-1 Ashish Garg, PW-2 Gaurav Aggarwal, PW-3 Naveen and PW-4 Kuldeep did not support the case of prosecution and turned hostile. All the PWs failed to identify the accused persons and case properties. Remaining prosecution witnesses were dropped as they were all formal witnesses. Examining the remaining formal witnesses would have been a futile exercise at the cost of judicial time and resources as their testimonies, even if accepted unrebutted, would not have been sufficient to prove the guilt of the accused. Accordingly, PE was closed.
10. In the absence of any incriminating evidence against the accused persons, recording of their statements u/s 313 CrPC was dispensed with.37 OA No. 2130/2024
Item No. 19/C-II
11. The accused persons opted not lead any evidence in their defence and the same was closed.
12. Final arguments were heard and record of the case has been perused.
13. It is the cardinal principle of criminal justice delivery system that the prosecution has to prove the guilt of accused beyond reasonable doubts. No matter how weak the defence of accused but, the golden rule of the criminal jurisprudence is that the case of the prosecution has to stand on its own legs.
14. In view of the hostile testimony of PW-1 Ashish Garg, PW- 2Gaurav Aggarwal, PW-3 Naveen and PW-4 Kuldeep, the prosecution cannot prove the offence? of u/s 365/384/34 IPC against the accused persons. The remaining eye witness Chander Prakash was dropped as he was untraceable even after issuance of summons through DCP concerned. Therefore, in view of hostile testimony of the witnesses and the fact that the eye witnesses have resiled from their earlier testimony/statement, the offences of u/s 365/384/34 IPC cannot be proved. Therefore, this Court does away with the necessity to recording testimonies of remaining formal prosecution witnesses and recording statement of accused persons (SA) and acquits the accused Rajan S/o Sh. Deep Chand, Rajesh S/o Sh. Suraj Bhan, Deepak S/o Sh. Om Prakash and Manoj S/o Sh. Satbir Singh of charges u/s 365/384/34 IPC Act."
49. In the above case, charges against the accused persons could not be proved due to hostile testimonies of the prosecution witness and thus acquittal of the accused persona. Thus, the acquittal of the accused persons cannot be considered as acquittal on merit but on technical grounds as the prosecution failed to prove the charges beyond any shadow of doubt. These factors cannot be ignored.
50. In the case of Yashvir Singh (supra), the disciplinary order was passed on by the Disciplinary Authority on 17.11.2014 and appellate order was issued by the appellate authority on 38 OA No. 2130/2024 Item No. 19/C-II 29.10.2015. The applicant agitated the cause of action in that case well within limitation period but in the present case, the applicant has waited for almost 9 years after filing the appeal and has remained a fence sitter. Further, neither there is any copy of appeal nor any date of submission of appeal. The applicant himself does not mention when he has filed appeal and even the filing of appeal was within time or not? Rule 25 of CCS (CCA) Rules, 1965 reads as under: -
"25. Period of Limitation of appeals No appeal preferred under this part shall be entertained unless such appeal is preferred within a period of forty-five days from the date on which a copy of the order appealed against is delivered to the appellant:
Provided that the appellate authority may entertain the appeal after the expiry of the said period, if it is satisfied that the appellant had sufficient cause for not preferring the appeal in time."
51. The applicant further states, in his pleadings, that the Appellate Authority has decided the appeal after a gap of 9 years. It is strange that even after filing appeal, the applicant has waited for 9 years to agitate his cause before this Tribunal. Nowhere in his pleadings, has he tried to explain as to what were the reasons for waiting for almost a decade for filing the present Original Application. On the other hand, the respondents, while filing their counter reply, have also failed to state as to why a period of almost 9 years has been taken by the Appellate Authority to decide this appeal. The appellate authority has mentioned in its 39 OA No. 2130/2024 Item No. 19/C-II appellate order dated 11-3-2024 that appeal is within the time limit. A long period of latches which span to almost close to 9 years is being tried to cover under the decision of appellate order, whereas, the impugned order vide which the applicant was removed from service dates back to 27.08.2015. We are unable to comprehend the strange ways of working of respondent authorities, taking almost 9 years to decide an appeal is clear refection on the poor administration, monitoring and control of respondent authorities on such work at higher echelon of the respondent Department. It also raises considerable question marks on the decision-making process by the respondent authorities in such matters. This needs deeper probe against the concerned officer (s) in the organization of the respondents and it is for them to set it right.
52. In para 4.6 of the OA, the applicant has stated that he has been acquitted of charge vide order/judgment dated 27.08.2015 passed by Sh. Rajinder Singh, MM, Dwarka Court, New Delhi and no attempt was made to take further action against the applicant by the office of the respondents and on the aforesaid issue and the matter was given quietus. If that is the case then the question arises that why the applicant has kept quiet for almost 9 years and filed the present OA for claiming restoration of his right to seek quashing of order of Disciplinary Authority when the law laid down by the Hon‟ble Court on the issue of delay is very clear. The 40 OA No. 2130/2024 Item No. 19/C-II issue of delay has been extensively dealt in by the Hon‟ble Courts and this Tribunal. Suffice is to refer a judgment of Hon‟ble High Court of Punjab & Haryana at Chandigarh in Civil Writ Petition No. 25957/2012 titled Krishan Kumar & Ors. Vs. State of Haryana & Ors. decided on 16.01.2015. For facility of reference, relevant portion is quoted as under: -
"14. In State of Maharashtra v. Digambar, (1995) 4 SCC 683, while dealing with exercise of power of the High Court under Article 226 of the Constitution, the Court observed that power of the High Court to be exercised under Article 226 of the Constitution, if is discretionary, its exercise must be judicious and reasonable, admits of no controversy. It is for that reason, a person's entitlement for relief from a High Court under Article 226 of the Constitution, be it against the State or anybody else, even if is founded on the allegation of infringement of his legal right, has to necessarily depend upon unblameworthy conduct of the person seeking relief, and the court refuses to grant the discretionary relief to such person in exercise of such power, when he approaches it with unclean hands or blameworthy conduct.
15. In State of M. P. and others etc. etc. v. Nandlal Jaiswal and others etc. etc., AIR 1987 SC 251, the Court observed that it is well settled that power of the High Court to issue an appropriate writ under Article 226 of the Constitution is discretionary and the High Court in exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. It has been further stated therein that if there is inordinate delay on the part of the petitioner in filing a petition and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in the exercise of its writ jurisdiction. Emphasis was laid on the principle of delay and laches stating that resort to the extraordinary remedy under the writ jurisdiction at a belated stage is likely to cause confusion and public inconvenience and bring in injustice.
16. Thus, the doctrine of delay and laches should not be lightly brushed aside. A writ court is required to weigh the explanation offered and the acceptability of the same. The court should bear in mind that it is exercising an extraordinary and equitable jurisdiction. As a constitutional court it has a duty to protect the rights of the citizens but simultaneously it is to keep itself alive to the primary principle that when an aggrieved person, without adequate reason, approaches the court at his own leisure or pleasure, the court would be under legal obligation to scrutinize whether the lis at 41 OA No. 2130/2024 Item No. 19/C-II a belated stage should be entertained or not. Be it noted, delay comes in the way of equity. In certain circumstances delay and laches may not be fatal but in most circumstances inordinate delay would only invite disaster for the litigant who knocks at the doors of the court. Delay reflects inactivity and inaction on the part of a litigant- a litigant who has forgotten the basic norms, namely, "procrastination is the greatest thief of time" and second, law does not permit one to sleep and rise like a phoenix. Delay does bring in hazard and causes injury to the lis. In the case at hand, though there has been four years' delay in approaching the court, yet the writ court chose not to address the same. It is the duty of the court to scrutinize whether such enormous delay is to be ignored without any justification. That apart, in the present case, such belated approach gains more significance as the respondent-employee being absolutely careless to his duty and nurturing a lackadaisical attitude to the responsibility had remained unauthorisedly absent on the pretext of some kind of ill health. We repeat at the cost of repetition that remaining innocuously oblivious to such delay does not foster the cause of justice. On the contrary, it brings in injustice, for it is likely to affect others. Such delay may have impact on others' ripened rights and may unnecessarily drag others into litigation which in acceptable realm of probability, may have been treated to have attained finality. A court is not expected to give indulgence to such indolent persons- who compete with `Kumbhakarna' or for that matter 'Rip Van Winkle'. In our considered opinion, such delay does not deserve any indulgence and on the said ground alone the writ court should have thrown the petition overboard at the very threshold."
53. Having regard to the above, we are of the considered view that impugned orders passed by the respondents are not only in violation of the settled law but also of their own circulars dated 11.09.2007 and 13.05.2024. The reasons given by the respondents for dispensing away with the enquiry are not in consonance with the law settled by the Hon‟ble Supreme Court and Hon‟ble High Court(s) and followed by this Tribunal in a catena of cases, a few of which are referred to hereinabove. 42 OA No. 2130/2024 Item No. 19/C-II
54. In view of the aforesaid facts and circumstances in the present case, we are of the considered view that the instant OA deserves to be partly allowed and the same is partly allowed with the following directions: -
(i) Orders dated 27.08.2015 (Annexure-A/1) of the Disciplinary Authority and dated 11.03.2024 (Annexure-A/2) of the Appellate Authority, are set aside and applicant is reinstated in service;
(ii) Respondents shall also be at liberty to decide the period of absence as per law and instructions.
(iii) However, the respondents shall be at liberty to initiate disciplinary proceedings against the applicant in accordance with the law and instructions on the subject.
(iv) We are restraining ourselves from imposing heavy cost on respondent No.3 with the hope that some dynamic monitoring mechanism shall be put into place to monitor such cases by the respondents. Pending MAs, if any, stand closed.
(Rajinder Kashyap) (R.N. Singh)
Member (A) Member (J)
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