Central Administrative Tribunal - Delhi
Mohit Malik vs Comm. Of Police on 13 September, 2022
Central Administrative Tribunal Principal Bench, New Delhi O.A. No.2629 of 2021 Orders reserved on : 05.09.2022 Orders pronounced on: 13.09.2022 Hon'ble Mr. R.N. Singh, Member (J) Hon'ble Shri Tarun Shridhar, Member (A) Mohit Malik S/o Sh. Jaswant Singh R/o Patti Sallan, VPO Lank, PS Shamli, Distt. Shamli, U.P. 247776 (Aged about 31 years) ...Applicant (through Advocate Shri Anil Singal) Versus 1. Commissioner of Police, Delhi Police Hdqrs. (New Building) Behind Parliament Street Police Station, New Delhi - 110001. 2. Joint Commissioner of Police (Eastern Range) Delhi Police Hdqrs. (New Building) Behind Parliament Street Police Station, New Delhi - 110001. 3. Deputy Commissioner of Police (North-East District) Office of DCP/NE Seelam Pur, Delhi - 110053. ... Respondents (through Advocate Shri Amit Yadav) O R D E R Hon'ble Mr. R.N. Singh, Member (J) :
By filing the instant Original Application under Section 19 of the Administrative Tribunals Act, 1985, the applicant has challenged the Order dated 27.7.2018 (Annexure A/2) 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 07.10.2021 (Annexure A/1) 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 in service with consequential benefits including monetary and seniority benefits.
2. Brief facts leading to filing of the present OA are that while the applicant was working as Constable (Exe.), a case FIR No.589/18 dated 26.07.2018 under Sections 385/34 IPC was registered at PS New Usmanpur. He was placed under suspension w.e.f. 27.07.2018. The applicant was arrested in the aforesaid case and released on bail on 09.08.2019. However, without holding a regular departmental enquiry and without affording any opportunity to defend, the Disciplinary Authority has dismissed the applicant from service vide impugned order dated 27.07.2018 (Annexure A/2), the contents of which reads as under:-
"It has come to notice that on 26.07.2018 at about 9 PM, complainant Smt. Sonam W/o Shri Shivaji@ Shiva R/O A-1/70, Gali No.1, Harsh Vihar, Delhi came to PS New Usmanpur and reported that her husband works as a helper in a Jewellery shop at A-2/104, Gali No.4, Harsh Vihar, Delhi. Shé stated that her husband was missing since 25.07.2018 afternoon and on the same day at about 11:30 PM, she received a call from her husband and he asked her not to worry as he will come home a day after. She kept searching for him but no clue was found. On 26.07.2018 at about 12:30 PM, she again received call from her husband who told her that he will come home soon. At about 5:30 PM, she called her husband where her husband asked her to manage Rs.1 lac. Thereafter, on the same phone another person talked to her and asked her to arrange the money if she wanted to get her husband released. After negotiation, the deal was finalized for Rs.60,000/- and she was asked to come at D-Aqua Hotel, Shashtri Park, Delhi. She found no one there and the mobile phone of her husband was also found to be switched off. She got worried and came to PS New Usmanpur where she reported the incident to the police. On receipt of the information, a case vide FIR No.589/18 dated 26.07.2018 u/s 385/34 IPC PS New Usmanpur was registered and a team was constituted and the complainant's husband was found in the custody of five persons, i.e. HC (SGD) Jitender Dutt Sharma, No.2753/NE (PIS No.28030386) and Ct. (Exe.) Mohit Malik, No.2521/NE (PIS No.28104944) (here-in-after called the defaulters), Attar Hassan S/O Amirul Hassan, Istkhar S/O Mohd. Anwar and Vijay Kumar S/o Paramjeet Lal. They were arrested in this case on 27.07.2018.
On this, a preliminary enquiry into the matter has been got conducted through Addl. DCP-I/NE which revealed that the defaulters alongwith the associates hatched a conspiracy to extort money from the family of Shiva by putting them into fear. Victim Shiva stated that money was demanded from his wife in lieu of his release. The culprits were arrested in the above case and the case is pending investigation. It is a grave misconduct on the part of the defaulters (HC (SGD) Jitender Dutt Sharma, No.2753/NE and Ct. (Exe.) Mohit Malik, No.2521/NE), which is unbecoming of police personnel which has extremely serious implications.
Through the facts surfaced during the preliminary enquiry, it has been observed that the facts and circumstances of the case were so serious that it will not be reasonably practicable to conduct a regular departmental enquiry against the defaulters as there is a reasonable belief that the witnesses may not come forward to depose against them owing to their influential positions. It also calls for great courage to depose against the desperate persons and the task becomes more acute and difficult where the police personnel could use his/ their job to influence the statement/deposition of the witnesses. It is also highly probable that during the entire process of departmental proceedings the complainant and witnesses would be put under constant fear of threat to their person and property from the defaulters. Under these circumstances, I am personally satisfied that conducting a regular D.E. against the defaulters is not practicably possible.
The criminal act of the defaulters has tarnished the image of Delhi Police. The defaulters were placed under suspension vide this office order No.13291-310/HAP/NE (P-II) dated 27.07.2018.
After completing the preliminary enquiry into the matter, in compliance to Circular issued from PHQ into the matter vide No.5545-645/P. Cell/Vig. dated 11.09.2007, the enquiry report was forwarded to Spl.C.P/L&O (N), Delhi for seeking his concurrence to dismiss the defaulters under Article 311 (2)(b) of Constitution of India and the same has been approved by the competent authority.
In view of the above details, it is clear that the defaulters committed the gravest act of misconduct. They indulged themselves in most abominable act which is not expected from personnel of a uniformed force. The shameful act committed by them has not only tarnished the image and brought disgrace to the organization but has also demoralized other police officers/staff. It is a clear instance of law enforcers turning into the law breakers and thereby projected a very bad image of Delhi Police in the eyes of the general public which tends to erode the faith in police department. Hence, it is an apt case where an exemplary punishment needs to be awarded to the defaulters so that it proves to be an eye opener to the others. Therefore, it would be a fit case in which Article 311(2)(b) of the Constitution of India should be invoked at the first instance without following the procedure of regular departmental proceedings.
Therefore, in order to send a clear message to such undesirable elements in the police force and to maintain discipline as well as to prevent recurrence of such incidents, it has become absolutely necessary to dismiss the defaulters as they are completely unfit for police service. Moreover, their further retention in the department after their involvement/arrest in the above mentioned case is absolutely undesirable in the public interest.
Therefore, I, Atul Kumar Thakur, IPS, Deputy Commissioner of Police, North-East District, Delhi, hereby order to dismiss defaulters HC (SGD) Jitender Dutt Sharma, No.2753/NE (PIS No.28030386) and Ct. (Exe.) Mohit Malik, No.2521/NĘ (PIS No.28104944) from Delhi Police under Article 311(2)(b) of the Constitution of India with immediate effect. Their suspension period from 27.07.2018 till issue of this order is also decided as period not spent on duty for all intents and purposes and the same will not be regularized in any manner.
They will deposit all their Government belongings i.e. Identity Cards, CGHS Cards, Appointment Cards, General Store/Clothing Store articles etc. with the respective Branches/Stores of North-East District at once.
The particulars of the defaulters are as under:-
1.
Name JITENDER DUTT SHARMA MOHIT MALIK
2. Rank & No. HC (SGD), No.2753/NE CONSTABLE (EXE.), 2521/NE
3. PIS No. 28030386 28104944
4. Fathers Name SATYA PRAKASH JASWANT SINGH
5. Caste BRAHAMAN JAT
6. Date of Birth 08.12.1981 05.07.1990
7. Date of enlistment 20.01.2003 08.01.2010
8. Height 173 Cm.
170 Cm.
9. Permanent Address E-13, AMAN MOHALLA, AMBEDKAR VIHAR, JOHRIPUR EXTENSION, DELHI-110094.
PATTI SALLAN, VPO LANK, PS FUGANA, DISTT. MUZAFFAR NAGAR, UP - 247776.
10. Present Address
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Let copies of this order be given to HC (SGD) Jitender Dutt Sharma, No.2753/NE (PIS No.28030386) and Ct. (Exe.) Mohit Malik, No.2521/NE (PIS No.28104944) free of cost. They can file their separate appeals against this order to the Joint Commissioner of Police, Eastern Range, Delhi within 30, days from the date of receipt of this order on a non-judicial stamp paper worth Rs.0.75 by enclosing this order, if they so desire."
2.1 The appeal preferred by the applicant against the aforesaid order of the disciplinary authority was rejected by the Appellate Authority vide order dated 07.10.2021 (Annexure A/1). Being aggrieved by the aforesaid order, the applicant has filed the instant OA for redressal of his grievances.
3. Pursuant to the notice, the respondents have filed their counter reply. The applicant has filed his rejoinder.
4. When this matter was taken up for hearing, at the outset, Shri Singal, 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 in OA 1383/2020 and a batch of cases, which was implemented by the respondents vide order dated 29.3.2022, in view of the fact that reasons deducted by the disciplinary authority while passing the aforesaid impugned 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.
4.1 On the strength of the aforesaid, learned counsel for the applicant has argued that disciplinary and appellate authorities have not applied their mind to the facts of the case. He has further submitted that the reasons recorded by the disciplinary authority to dispense with enquiry are vague and totally unsustainable in law as the Disciplinary Authority has nowhere pointed out any evidence as to how holding of DE is not reasonable practical, which is the condition precedent for invoking the powers under Article 311 (2) (b) of the Constitution of India. He has also submitted that there is no material on record to show that the disciplinary authority even made the slightest possible effort to initiate a departmental inquiry as only after making such an effort, a disciplinary authority can come to the conclusion that departmental inquiry is not reasonably practicable and only acting on the presumption and surmises came to the conclusion that departmental inquiry is not practicable. Further no efforts for initiating the departmental enquiry was made by the respondents. Thus it is wrong to say that the departmental enquiry is not reasonably practicable. Rather the disciplinary authority merely on suspicion and surmises and under the garb of Article 311(2)(b) of the Constitution of India dispensed with the departmental inquiry thus depriving the applicant to put up any defence which has caused great prejudice to the applicant. He has further submitted that merely because the case of the prosecution is weak or the witnesses will not support the story of the prosecution is not a ground to dispense with the departmental inquiry and moreover the gravity of the allegations levelled against the applicant cannot be tilting factor in order to decide whether the departmental inquiry is reasonably practicable or not. He has also argued that there is no evidence brought on record by the respondents to show that that the witnesses were threatened by the applicant or there is any complaint by the witnesses regarding threatening notes/calls by the applicant. Rather the Disciplinary Authority even without making any efforts to initiate the DE, without calling the witnesses by way of notices, presumed the applicant guilty of the charges levelled against him in the criminal case to be true, which shows that that conclusion of the disciplinary authority is based on merely presumptions. Even otherwise the dispensing of the enquiry for even non-deposition of witnesses due to fear was held to be illegal by the Hon'ble Supreme Court in the case of Chief Security Officer vs. Singasan Rabidas, reported in 1991 (5) J.T. 117.
4.2 Shri Singal, learned counsel for the applicant, has further submitted that Govt. of India as well as the respondents themselves through various circulars provide that the disciplinary authority should not take resort of Article 311(2)(b) of the 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.
4.3 Learned counsel for the applicant has further argued that the disciplinary and appellate authorities have ignored the circulars dated 8.11.1993, 29.12.1993 and 11.09.2007 (Annexure A/5 (colly)), which categorically stipulate 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 as given by the disciplinary authority for dispensing with the departmental enquiry vide impugned order are contrary to the law on the subject. Moreover, the respondents cannot hold the applicant guilty of the misconduct without affording him opportunity of defence at his back and that too on the basis of preliminary enquiry report and facts recorded 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 Yadav, 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. We have asked 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 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 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 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."
The aforesaid Common Order/Judgment has attained finality as the respondents therein are stated to have implemented. The learned counsel for the respondents has not disputed the fact that in the case of applicants in the said OAs, the respondents have implemented the aforesaid common Order/Judgment of this Tribunal but he has submitted that the facts of the case of the applicant are entirely different from the aforesaid cases. He has merely reiterated what is stated in the impugned orders or in the counter reply. However, the learned counsel for the respondents has not been able to give any cogent reason as to why the ratio of the aforesaid common Order/Judgment in Ct. Sumit Sharma (supra) does not mutatis mutandis apply in the case of the applicant. We also find that no such evidence/material have been brought before us to indicate that the applicant 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, any efforts was made by the respondents to summon the witness(es) to lead the evidence against the applicant 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 orders, 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 best efforts, they had not been able to produce the witness(es) to lead evidence against the applicant. It is also 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 and there being a possibility that witness(es) may not come forward to depose against the applicant. Such acts/orders of the respondents are not only in violation of the settled law but also of their own aforesaid circulars dated 29.12.1993, 8.11.1993 and 11.9.2007. Hence, we are of the considered view that reasons given by the respondents for dispensing with the enquiry are not in consonance with the law settled by the Hon'ble Supreme Court and Hon'ble High Courts and followed by this Tribunal in a catena of cases, a few of which cases are referred to hereinabove.
7. 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.
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 27.7.2018 (Annexure A/2) and dated 07.10.2021 (Annexure A/1) 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/ 16 OA No.2629 of 2021 1 O.A. No.2629 of 2021