Central Administrative Tribunal - Delhi
Manjesh Rana vs Delhi Police on 6 May, 2025
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Item No. 38 O.A. NO. 288/2024 WITH O.A. NO. 370/2024, O.A.NO. 263/2024
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No. 288/2024
With
O.A. No. 370/2024, O.A. No. 263/2024
Dated this the 6th day of May, 2025
Hon'ble Mr. R N Singh, Member (J)
Hon'ble Mr. B. Anand, Member (A)
O.A. No. 288/2024
Deepak Yadav,
Age 27 years,
S/o Late Sh. Bhoop Singh,
R/o H.No. B-25, Vikas Nagar,
PO Uttam Nagar, PS Ranhola,
Outer Distt. Delhi
Sub.; Dismissal
Group 'C'
...Applicant
(Advocate: Mr. Sachin Chauhan)
Versus
1. Govt. Of NCT of Delhi through the Chief Secretary, Govt. Of NCTD,
A-Wing, 5th Floor, Delhi Secretariat, New Delhi-110113
2. The Commissioner of Police, Police Headquarters, Jai Singh Road,
New Delhi
3. The Joint Commissioner of Police Armed Police-II, Delhi Through
the Commissioner of Police Jai Singh Road, New Delhi
4. The Deputy Commissioner of Police VIII BN, DAP (DPSB), Delhi
Through the Commissioner of Police Jai Singh Road, New Delhi
...Respondents
(Advocate: Mr. R.S.Rana through VC)
O.A. No. 370/2024
Vijay Sharma,
Age 31 years,
S/o Sh. Bani Singh,
R/o H.No. 30, 3rd Floor, Pkt-10,
Sec-22, Rohini Delhi
Sub.; Dismissal Group 'C' .....Applicant
(Advocate: Mr. Sachin Chauhan)
2
Item No. 38 O.A. NO. 288/2024 WITH O.A. NO. 370/2024, O.A.NO. 263/2024
Versus
1. Govt. Of NCT of Delhi through the Chief Secretary, Govt. Of NCTD,
A-Wing, 5th Floor, Delhi Secretariat, New Delhi-110113
2. The Commissioner of Police, Police Headquarters, Jai Singh Road,
New Delhi
3. The Joint Commissioner of Police Armed Police-II, Delhi Through
the Commissioner of Police Jai Singh Road, New Delhi
4. The Deputy Commissioner of Police VIII BN, DAP (DPSB), Delhi
Through the Commissioner of Police Jai Singh Road, New Delhi
...Respondents
(Advocate: Mr. R.S.Rana through VC)
O.A. No. 263/2024
Manjesh Rana (Ex. Constable),
S/o Narender Singh,
Age about-30 years,
R/o H.No. 85, Arya Samaj Gali,
Siraspur, Samaipur
New Delhi-110042
...Applicant
(Advocate: Mr. Arun Bhardwaj, Sr. Advocate through VC assisted by
Ms. Muskan Jain)
Versus
1. The Commissioner of Police, Delhi Police Headquarters Jai Singh
Marg, Hanuman Road New Delhi-110001
2. Deputy Commissioner of Police Delhi Police Security Battalion
Model Town Complex Delhi-110009
3. Joint Commissioner of Police Delhi Police Headquarters, Jai
Singh Marg, Hanuman Road, New Delhi-110001
(Advocate: Mr. R.S.Rana through VC)
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Item No. 38 O.A. NO. 288/2024 WITH O.A. NO. 370/2024, O.A.NO. 263/2024
O R D E R (ORAL)
Hon'ble Mr. R. N. Singh, Member (J) We have heard the learned counsels for the parties and with their assistance we have also perused the pleadings available on record.
2. It is undisputed that an incident of robbery was reported and police lodged FIR No. 228/2023, under Section 394/34 IPC dated 20.04.2023 with PS Sagarpur, South West Disctrict, Delhi. During investigation 4 out of 5 accused in the said FIR were allegedly identified to be applicants in the aforesaid 3 O.As and one Mr. Ankit Kasana, who was at the relevant point of time , working as Constable, under the respondents in the present O.A.
3. Pursuant thereto a preliminary inquiry was conducted by the respondents and on the basis of the report of such preliminary inquiry, it was prima facie established that the delinquent 4 police officials (including the three applicants herein) have committed the said grave offence amounting to 4 Item No. 38 O.A. NO. 288/2024 WITH O.A. NO. 370/2024, O.A.NO. 263/2024 serious misconduct. In such view of the matter, the respondents by invoking the provisions of Article 311(2) (b) have passed the order of dismissal from services of the applicants herein.
4. Aggrieved by such order, the applicants, as well as, the fourth co-accused, namely Mr. Ankit Kasana preferred statutory appeal and such appeals were rejected. Aggrieved by the order of penalty passed by the disciplinary authority and the appellate authority, all the four have approached this Tribunal by way of different O.As.
5. The aforesaid, Mr. Ankit Kasana approached this Tribunal by way of an O.A., being O.A. No. 264/2024 and the same was allowed by a co-ordinate Bench of this Tribunal, consisting one of us (Hon'ble Mr. R.N.Singh), vide order/judgment dated 08.10.2024. Learned counsels for the parties submit that the facts, the grounds raised in support of the claim of the respective applicants, the defence of the respondents and the issue involved in the present O.A. are identical and in this view 5 Item No. 38 O.A. NO. 288/2024 WITH O.A. NO. 370/2024, O.A.NO. 263/2024 of the matter, the present O.As have been heard together and are being disposed of by the present common order.
6. Undisputedly, the facts , issue and the grounds in support and in opposition in the present O.A. are identical to those in the case of Ankit Kasana (Supra). For clarity, we are reproducing the order/judgment dated 08.10.2024 in the case of Ankit Kasana (Supra) as under:-
"By way of the present OA filed u/s 19 of the AT Act, 1985, the applicant, in para 8 of the OA, has prayed for the following reliefs: -
"i. Quash and set aside the order dated 25.05.2023 passed by Respondents ii. Quash and set aside the order dated 11.01.2024, rejecting the Appeal of the Applicant without Application of mind.
iii. Remove such order of dismissal from the service book of the Applicant herein.
iv. Reinstate the Applicant with full consequential benefits.
v. Award cost of this Application and proceedings against the Respondents and in favour of the Applicant herein.
vi. Pass such other, further order(s) in the facts and circumstances of the case that this Ld. Tribunal may deem fit and equitable in favour of the Applicant and against the Respondents."
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.
3. The brief facts of the present case are that the applicant was duly enlisted in Delhi Police on 26.02.2020 as Ct-M/Executive. The applicant claims that he had 6 Item No. 38 O.A. NO. 288/2024 WITH O.A. NO. 370/2024, O.A.NO. 263/2024 been serving with the respondents to the complete satisfaction of the superior officials, having an unblemished and meritorious service record. He further submits that he was falsely implicated in FIR No. 228/2023 was registered in P.S. Sagarpur in South West District of New Delhi u/s 394/34. The applicant also claims that his name was not even mentioned in the FIR. Thereafter, on 21.04.2023, the applicant was arrested and kept in judicial custody remand. On 24.05.2023, the applicant was released on bail. The respondents dismissed the applicant on 25.05.2023 from service without holding a Departmental Enquiry.
4. The applicant further submits that his Appointing Authority was Commissioner of Delhi Police. However, in violation of all rules, the order of Dismissal has been passed by Additional Deputy Commissioner of Police, who is not the Competent Authority to pass such orders of dismissal as per the provisions of Delhi Police (Punishment & Appeal) Rules, 1980. The applicant claims that such illegal action of the respondents is violative of Rule 5 and Rule 6 of Delhi Police (Punishment & Appeal) Rules, 1980 and is entirely arbitrary, discriminatory and unfair. Rule 5 and Rule 6 of the Delhi Police (Punishment & Appeal) Rules 1980, is reproduced as under:-
"5. Authorized Punishments. - The Delhi Police Act, 1978 prescribed the following penalties: (i) Dismissal, (ii) Removal from service iii) Reduction in rank for a specified period (iv) Forfeiture of approved service. (v) Reduction in pay, (vi) Withholding of increments, (vii) Fine not exceeding one month's pay, (viii) Censure, (ix) Punishment drill not exceeding 15 days or fatigue duty or any other punishment duty to constables only.
6. Classification of punishments and authorities competent to award them. - (i) Punishment mentioned at Sl. No. (i) to (vii) above shall be deemed "major punishment" and may be awarded by an officer not below the rank of the appointing authority after a regular departmental enquiry. (Substituted in Rule 6(ii) vide Notification No. F. 5/4/85-Home (P)/Estt. dated 15.3.85). (ii) Punishment mentioned at Sl. No. (viii) shall be called "Minor punishment" and may be awarded by the authorities specified in sub-section (i) of Section 21 of the Delhi Police Act, 1978 after serving a show cause notice giving reasonable time to the defaulter and considering his written reply as well as oral deposition, if any for which opportunity shall be afforded on request. Authority competent to award Rank to whom it can be awarded (i) Deputy Commissioner of Police and above Inspector and below (ii) Assistant Commissioner of Police 7 Item No. 38 O.A. NO. 288/2024 WITH O.A. NO. 370/2024, O.A.NO. 263/2024 Constable to Sub-Inspector iii) The punishment mentioned at Sl. No. (ix) above may be called "Orderly room punishment" and shall be awarded after the defaulter has been marched and heard in Orderly Room by the Officer of and above the rank of Inspector as laid down in section 21 (3)
(c) of the Delhi Police Act, 1978."
5. Aggrieved by the punishment of dismissal from service passed by the Respondents, the applicant preferred an appeal to Additional Commissioner of Police against the order dated 25.05.2023 (Annexure-A/1), which was rejected by the Appellate Authority on 11.01.2024 (Annexure-A/2).
6. The applicant also mentions that on 10.07.2023 (Annexure-A/5), the complainant and the applicant signed a Memorandum of Understanding-cum- Settlement Deed where the complainant admitted that the applicant is not the culprit and has not been identified in TIP proceedings that such F.I.R had only been registered due to a misunderstanding, anguish and in a heat of passion. It is a matter of record that Hon'ble High Court of Delhi was pleased to quash the FIR No. 228/2023 vide order dated 10.08.2023 in Crl. Mc 5651/2023 titled Manish Rai & Ors. Vs. The State, Govt. of NCT of Delhi. The applicant vide letter dated 25.08.2023 (Annexure-A/7) also apprised the respondents that the FIR has been quashed by the Hon'ble High Court of Delhi and therefore, requested for reinstatement in the service. The applicant further contends that on 11.01.2024, without application of mind and without considering the fact that the FIR has been quashed by the Hon'ble High Court of Delhi, the respondents rejected the Appeal of the applicant. The applicant also states that Article 311 (2) (b) of the Constitution of India has been wrongly applied by the respondents and thereby such action, the principles of Natural Justice has been denied to the Applicant.
7. Because the Ld. Tribunal repeatedly in O.A. No. 2295/21 and 2297/15, O.A 1383/2020 and various other O.As has held that every employee is entitled to an opportunity of defending himself against the allegations made against him.
8. Learned counsel for the applicant is placing reliance on the latest judgment of the Hon'ble Tribunal qua the same respondent on the use of Article 8 Item No. 38 O.A. NO. 288/2024 WITH O.A. NO. 370/2024, O.A.NO. 263/2024 311 (2) (b)of the Constitution of India i.e. OA No. 2295/2021 in the case of Bhopal Singh Vs. Commissioner of Police & Ors. decided on 02.08.2022, OA No. 2297/2015 in the case of Sh. Om Parkash Vs. The Commissioner of Police & Ors. decided on 09.11.2022, and connected OAs No. 1383/2020, 3508/2018, 4021/2016,. 3027/2018, 2777/2019, 3267/2019, 467/2020 and 34/2021 titled Sumit Sharma Vs. Govt. of NCT of Delhi & Ors. decided on 10.02.2022. Hence, the present O.A.
9. Feeling aggrieved by the aforesaid act of the respondents, the applicant approached this Tribunal by way of the present OA.
10. Counter reply has been filed by the respondents on 22.04.2024 wherein it is stated that on 20.04.2023, a case FIR No. 0228, u/s 394/34 IPC was registered at PS Sagarpur, South-West District, Delhi on the complaint of Sh. Rajnish S/o Sh. Ram Sajivan Mishra R/o H.No. RZ-105/46A, IVth Floor, Mohan Block, Sagarpur, Delhi aged 30 yrs., who alleged that on the night of 19.04.2023, he was watching IPL match with his girlfriend at his home. At about 10.40 PM, someone knocked at his door by name. He opened the door, after which 04 persons entered into his house and posed themselves from Cyber Police Station. They started threatening and slapping the complainant. They took the mobile phones of the complainant and his girlfriend. Thereafter, they asked the complainant to give money, for which the complainant denied. Then they asked him to get money transferred into his account from his friend. The complainant called his friend namely Naveen telephonically, who transferred Rs. One Lakh in his account No. 662901701052 of ICICI Bank at about 12.27 AM (dated 20.04.2023).
11. After that the alleged persons took Rs. 10 Lakh and Gold chain from the locker of his almirah. They also took 02 Debit Cards of the complainant of ICICI Bank Account No. 662901701052 & 194301509710 and managed to take the PIN number by threatening him. They made the complainant to write on a paper that he mines Bitcoin. At about 12.40 AM, the alleged persons left from there after 9 Item No. 38 O.A. NO. 288/2024 WITH O.A. NO. 370/2024, O.A.NO. 263/2024 throwing the switched off mobile phones of the complainant & his girl friend, after closing the door from outside. The complainant immediately looked outside from his balcony and saw the alleged persons fleeing in small white car. Thereafter, the complainant called his friend Naveen and apprised the facts. Finally, they made a PCR call, which was received at PS Sagarpur, Delhi at 02.36 AM vide order dated 20.04.2023. Accordingly, the above mentioned FIR was registered.
12. During investigation, 4 out of the 5 accused persons were identified as Delhi Police Constables namely Const. (Exe.) Manjesh Rana, DAP, Const. (Exe.) Deepak Yadav, Const. (Exe.) Vijay (all 3 posted in 8th Bn. DAP) and Const. (Exe.) Ankit Kasana, (posted in PS Pt. Street, New Delhi District). The respondents submit that the applicant was arrested in this case on 20.04.2023 and was accordingly placed under suspension w.e.f. 20.04.2023 i.e. from the date of his arrest vide office order dated 24.04.2023. They further states that a Preliminary Enquiry into the matter was got conducted through ACP/B.K. Road/NDD vide office order dated 24.04.2023, which concluded that all the five accused persons, out of which four are Delhi Police personnel including the applicant posted in PS Parliament Street, New Delhi District, were arrested and sent to judicial custody remand by the order of Hon'ble Court. The applicant was arrested in the above case on 20.04.2023 vide arrest memo and an amount of Rs.2.70 Lakh, which was part of looted case property, was recovered on his instance, which was seized through seizure memo. The car no. DL-10 CT-8771 which was used during the commission of crime, was also recovered on the instance of applicant and the same was seized in the case through seizure memo. The said car is in the name of Smt. Kamlesh (Mother of the applicant). After completion of the Preliminary Enquiry, in compliance of the Circulars issued from PHQ dated 11.09.2007 and 18.04.2018, the P.E. report was forwarded to Spl. CP/L&O/Zone-II, Delhi for seeking necessary concurrence to dismiss the applicant under article 311 (2) (b) of the Constitution of India and the same was approved by the Competent Authority. 10 Item No. 38 O.A. NO. 288/2024 WITH O.A. NO. 370/2024, O.A.NO. 263/2024
13. The respondents also mention that it was evident that the applicant had involved himself in criminal case of loot, as such his further continuance in the police force was likely to cause irreparable loss to the functioning and credibility of the organization. The indulgence of police personnel in such a dastardly act would destroy the faith of the people on the law enforcement agency. He had acted in a manner, which is highly unbecoming of a police officer of a disciplined force. Such involvement of a police official will cause a highly deleterious impact on the entire force. The facts and circumstances of the case were such that it was not practicable to conduct a regular departmental enquiry against the applicant.
14. The respondents submit that from the contents of the FIR and findings of the Preliminary Enquiry, it was evident that the applicant had committed a heinous crime of loot, which was extremely alarming, most abhorrent and required to be dealt with a heavy hand. When a policeman, who is charged with the sacred responsibility of upholding the rule of law, himself indulges in such an act of heinous crime and lawlessness, the faith of the common man in Govt. authority gets shattered. Such act of ghastly crime produces highly deleterious impact on the organization, which rendered him liable and unbecoming of a govt. servant and his further retention in police force was highly undesirable. The accused was in lawful custody and there was no scope of his release on bail in near future. The criminal case would have taken a lot of time to complete the marathon litigation processes to reach its logical end and the accused would draw subsistence allowance for a long period. Further there is existing practice that the PWs first depose before the Court of law to avoid any controversy or leakage of fact and also the applicant was in lawful custody as such he could not participate in the D.E. proceedings. Under these circumstances it was not practicable to hold a regular departmental enquiry against the applicant.
15. The respondents also submit that the applicant had brought bad name to the entire in police force. The indulgence of police official in such a criminal act would 11 Item No. 38 O.A. NO. 288/2024 WITH O.A. NO. 370/2024, O.A.NO. 263/2024 destroy the faith of the people in the law enforcement system and no witness would come forward for any enquiry. The involvement of the applicant in such criminal act was not only undesirable, but it also amounted to serious misconduct and indiscipline. The respondents also contend that the Preliminary Enquiry conducted into the matter had proved his involvement in this case. Therefore, the applicant was dismissed from the service under Article 311(2) (b) of the Constitution of India vide order dated 25.05.2023. His suspension period from 20.04.2023 to the date of issue of dismissal order was decided as period "Not spent on duty" for all intents and purposes.
16. We have heard learned counsels for the parties and have perused the pleadings available on record.
17. The learned counsel 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 a 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.
18. The Disciplinary Authority while issuing punishment order dated 25.05.2023 (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:-
"During investigation, 4 out of the 5 accused persons were identified as Delhi Police Constables namely Const. Exe.) Manjesh Rana No. 9335/DAP, Const. (Exe.) • Deepak Yadav No. 9322/DAP, Const. (Exe.) 12 Item No. 38 O.A. NO. 288/2024 WITH O.A. NO. 370/2024, O.A.NO. 263/2024 Vijay No. 9283/DAP (all 3 posted in 8th Bn. DAP) and Const. (Exe.) Ankit Kasana, No. 2058/ND (PIS No. 28200170) (posted in PS Pt. Street, New Delhi District). Const. (Exe.) Ankit Kasana, No. 2053/ND was arrested in this case on 20.04.2023 and was accordingly placed under suspension w.e.f. 20.04.2023 i.e. from the date of his arrest vide this office order No. 1727-50/HAP/NDD (D-I), dated 24.04.2025 and he is still running under suspension.
A Preliminary Enquiry into the matter was got conducted through ACP/B.K. Road/NDD vide this office order No. 1766/HAP/NDD (D-I), dated 24.04.2023, which concluded that all the five accused persons, out of which four are Delhi Police personnel including Constable Ankit Kasana posted in PS Parliament Street, New Delhi District, were arrested and sent to judicial custody remand by the order of Hon'ble Court. Const. (Exe.) Ankit Kasana, No. 2058/ND (PIS No.28200170) was arrested in the above case on 20.04.2023 vide arrest memo and an amount of Rs.2.70 Lakh, which is part of looted case property, was recovered on his instance, which has been seized through seizure memo. The car No. DL- 10CT-8771 which was used during the commission of crime, was also recovered on the instance of Const. (Exe.) Ankit Kasana and the same was seized in the case through seizure memo. The said car is in the name of Smt. Kamlesh (Mother of Const. Ankit Kasana).
After completion of the Preliminary Enquiry, in compliance of the Circulars issued from PHQ vide Nos. 5545-645/P.Cell/Vig., dated 11.09.2018, 2513-2612/P. Cell (P. Misc.)/ Vigilance, dated 18.04.2018, the P.E. report was forwarded to Spl. CP/L&O/Zone-II,Delhi for seeking necessary concurrence to dismiss Const. (Exe.) Ankit Kasana, No. 2058/ND under article 311 (2) (b) of the Constitution of India and the same has been approved by the Competent Authority.
From the above facts, it is evident that Const. (Exe.) Ankit Kasana, No. 2058/ND has involved himself in criminal case of loot, as such his further continuance in the police force is likely to cause irreparable loss to the functioning and credibility of the organization. The indulgence of police personnel in such a dastardly act would destroy the faith of the people on the law enforcement agency. He had acted in a manner, which is highly unbecoming of a police officer of a disciplined force. Such involvement of a police official will cause a highly deleterious impact on the entire force. The facts and circumstances of the case are such that it would not be practicable to conduct a regular departmental enquiry against the accused Constable.
From the contents of the FIR and findings of the Preliminary Enquiry, it is evident that accused Const. (Exe.) Ankit Kasana, No. 2058/ND has committed a heinous crime of loot, which is extremely alarming, most abhorrent and requires to be dealt with a heavy hand. When a policeman, who is charged with the sacred responsibility of upholding the rule of law, himself indulges in such an act of heinous crime and lawlessness, the faith of the common man in Govt's authority gets shattered. Such act of ghastly crime produces highly deleterious impact on the organization, which renders him liable and unbecoming of a govt. servant and his further retention in police force would be highly undesirable. The accused is still in lawful custody and there is no scope of his release on bail in near future. The criminal case will take a lot of time to complete the marathon litigation processes to reach its logical 13 Item No. 38 O.A. NO. 288/2024 WITH O.A. NO. 370/2024, O.A.NO. 263/2024 end and the accused will draw subsistence allowance for a long period. Further there is existing practice that the PWs first depose before the Court of law to avoid any controversy or leakage of fact and also the accused Constable is in lawful custody as such he cannot participate in the D.E. proceedings. Under these circumstances it would not be practicable to hold a regular departmental enquiry against the accused Constable.
Under these circumstances, I am of the view that Const. (Exe.) Ankit Kasana, No. 2058/ND has brought bad name to the entire police force. The indulgence of police official in such a criminal act would destroy the faith of the people in the law enforcement system and no witness will come forward for any enquiry. The involvement of the Const. in such criminal act is not only undesirable, but it also amounts to serious misconduct and indiscipline. It is under these given set of compelling circumstances, the rules under Article 311 (2) (b) of Constitution of India have been invoked in this case. Const. (Exe.) Ankit Kasana, No. 2058/ND shall not be allowed to continue in police service and needs to be dismissed immediately without following the procedure of regular Departmental Proceedings, as the content of case PR No. 0228 dated 20.04.2023, /s 394/34 IPC, IPS Sagarpur, Delhi in the Preliminary Enquiry conducted into the matter have proved his involvement in this case.
Therefore, I, Dr. Hemant Tiwari, IPS, Additional Deputy Commissioner of Police-I, New Delhi Distt. New Delhi, do, hereby dismiss Const. (Exe) Ankit Kasana No. 2058/ND from the service with immediate effect under Article 311 (2) (B) of the Constitution of India. His suspension period from 20.04.2023 to the date of issue of this order is decided as period "Not spent on duty" for all intents and purposes."
19. The applicant has also filed an appeal against the punishment order which was decided by the Appellate Authority on 11.01.2024 (Annexure-A/2). For facility of reference, it would be appropriate to quote the relevant portion of the appellate order, the same reads as under:-
"During the course of the investigation, 4 out of the 5 accused persons were identified as Delhi Police Constables namely Const. (Exe.) Manjesh Rana No. 9335/DAP, Const. (Exe.) Deepak Yadav No. 9322/DAP, Const. (Exe.) Vijay No. 9283/DAP (all 3 posted in 8th Bn. DAP) and Const. (Exe.) Ankit Kasana, No. 2058/ND (PIS No. 28200170) (posted in PS Pt. Street, New Delhi District). The appellant was arrested in the said case on 20.04.2023 and was accordingly placed under suspension w.e.f. 20.04.2023 i.e. from the date of his arrest vide order No. 1727-50/HAP/NDD (D-I), dated 24.04.2023.
A Preliminary Enquiry was got conducted into the matter through ACP/B.K.Road/NDD vide No. 1766/HAP/NDD (D-I), dated 24.04.2023, which concluded that all the five accused persons, out of which four are Delhi Police personnel including Ankit Kasand posted in PS Parliament Street, New Delhi District, were arrested and sent to judicial custody remand by the order of Hon'ble Court. The appellant was arrested in the above case on 20.04.2023 vide arrest memo and 14 Item No. 38 O.A. NO. 288/2024 WITH O.A. NO. 370/2024, O.A.NO. 263/2024 an amount of Rs.2.70 Lakh, which was part of looted case property, was recovered on his instance, which was seized through seizure memo. The Car No. DL - 10CT-8771 which was used during the commission of crime, was also recovered on the instance of the appellant and the same was seized in the case through seizure memo. The said car is in the name of Smt. Kamlesh (Mother of the appellant). From the above facts, it was evident that the appellant had involved himself in criminal case of Robbery, as such his further continuance in the police force was likely to cause irreparable loss to the functioning and credibility of the organization. The indulgence of police personnel in such a dastardly act would destroy the faith of the people on the law enforcement agency. He had acted in a manner, which is highly unbecoming of a police officer of a disciplined force. Such involvement of a police official will cause a highly deleterious impact on the entire force. The facts and circumstances of the case are such that it was not practicable to conduct a regular departmental enquiry against the accused Constable (appellant).It is under these given set of compelling circumstances, the rules under Article 311(2)(b) of Constitution of India were invoked in this case. The appellant was not be allowed to continue in police service and needed to be dismissed immediately without following the procedure of regular Departmental Proceedings, as the contents of case FIR No. 0228 dated 20.04.2023, u/s 394/34 IPC, PS Sagarpur, Delhi and the Preliminary Enquiry conducted into the matter had proved his involvement in this case. Therefore, the appellant was awarded the punishment of dismissed from the service under Article 311(2) (b) of the Constitution of India and his suspension period from 20.04.2023 to the date of issue of dismissal order was decided as period "Not spent on duty" for all intents and purposes. The punishment order was served upon the appellant on 29.05.2023. Thereafter the appellant has submitted his appeal on 12.06.2023, which is within the time limit.
I have carefully gone through the appeal filed by the appellant Ex. Constable (Exe.) Ankit Kasana, No: 2058/ND (PIS No. 28200170), as well as relevant record available on file and also heard him in O.R. on 08.01.2024, during which he reiterated the same plea which he has already mentioned in his appeal. In his appeal, he has submitted various court judgment/order in support of his version. The available evidence on record on file indicates that he was arrested on 20.04.2023 vide arrest memo and Rs. 2.30 Lakh, which was part of looted case property, was recovered on his instance, which were seized through seizure memo. The car was also received on the instance of the appellant, which was used during the commission of crime and the said car is in the name of the Smt. Kamlesh (Mother of the appellant). Hence, disciplinary authority was constrained to invoke the provision of Article 311 (2) (b) of the constitution of India for the sake of justice and held that on the basis of gravity of case, the appellant had become a liability to the police department and needs to be dealt with heavy hand. During OR, the appellant has stated that above criminal case FIR has been quashed by the Hon'ble High court since the parties settles the disputes out of court but the terms and conditions of the settlement has not been mentioned by the parties. Also by way of settlement they might have closed the case FIR but misconduct of the above constables still holds good. By retaining such persons of criminal bent of mind in the disciplined force does not serve any purpose and it can only exasperate the moral strength of other 15 Item No. 38 O.A. NO. 288/2024 WITH O.A. NO. 370/2024, O.A.NO. 263/2024 police persons. By entering into such as settlement without revealing the terms of settlement is an admission of offence by the accused themselves: On satisfaction of loss incurred by the complainant the matter may be settled between the parties but the way the above police personnel conducted the offence by impersonating themselves as from cybercrime and looting case and valuable things from the house of the complainant by trespassing into the house at odd hours is a serious offence/ misconduct in the part of police personnel. Further, reinstating them and conducting a regular departmental enquiry would be a fruitless effort since complainant will not come forward to depose against the appellant since now the matter being settled between them. Therefore, I am of opinion that the decision of the disciplinary authority invoking, Article 311(2) (b) of constitution of India, is fully justified and find no reason to interfere with the punishment of dismissal awarded to the appellant by the Disciplinary Authority vide order No. 2103-2202/HAP/NDD(D-I) dated 25.05.2023. Hence, the appeal submitted by Ex. Constable (Exe.) Ankit Kasana, No. 2058/ND (PIS No. 28200170) is, hereby rejected after due consideration.
Let the appellant be informed accordingly."
20. 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 Article of the Constitution of India are invoked only to avoid the disciplinary enquiry and get rid of the applicant in convenient manner. The Disciplinary Authority did not mention the reasonable grounds even when Preliminary Enquiry was ordered against the applicant. It could be seen from the appellate order that Appellate Authority had rejected the appeal in a mechanical manner without addressing specific submissions of the applicant and merely on presumptions that the allegation against the applicant is presumed to be proved and the witness might not have come forward to depose against the applicant. The Appellate Authority is simply assuming that the allegations against the applicant stands proved and this justification is good enough to invoke the Article 311 (2) (b) of the Constitution of India and dismiss the applicant. The Appellate Authority did 16 Item No. 38 O.A. NO. 288/2024 WITH O.A. NO. 370/2024, O.A.NO. 263/2024 not explore, in the present case, that majority of the witnesses are official witnesses. If preliminary enquiry is possible, then the departmental enquiry is also possible. Similarly, if the trial is possible then the departmental enquiry is also possible. However, both disciplinary authority and appellate authority did not make any efforts to conduct departmental enquiry and resorted to invocation of provision of Article 311 (2) (b) of the Constitution of India to impose the penalty of dismissal. This could be construed as strong bias of respondents towards the applicant and their disdain approach to uphold Rule of Law. The respondents being senior police officer holding high position are required to run the administrative decision making lawfully. Earlier also while deciding other matters, we have pointed out that a serious course correction is needed in the respondent Department while handling such cases and it is for their betterment if they take effective steps in that direction. We need not further ponder upon this point and leave it here.
21. 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 that it was not reasonably practicable to conduct regular departmental enquiry as witness might not come forward to decide the case and Appellate Authority depose against a police officer respondents have rejected the appeal which could be construed as bad in law.
22. It is apparent that the Disciplinary Authority has assumed as if the allegations made in criminal case (FIR) already stand proved and thus with this presumptions, the present impugned order has been issued. Once the order of 17 Item No. 38 O.A. NO. 288/2024 WITH O.A. NO. 370/2024, O.A.NO. 263/2024 Disciplinary Authority is based on assumption as if the allegations made against the applicant already stand proved that too on the content of FIR, the same act is enough to vitiate the order of Disciplinary Authority as the same being bad in law and being based on assumptions, suspicion and surmises. Further, the Disciplinary Authority is assuming that the offence has been committed by the applicant and under this assumption, the present order of Disciplinary Authority is being passed invoking Article 311 (2) (b) of the Constitution of India. There are circulars, judgment of judicial forums which clearly 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. The reasoning recorded by Disciplinary Authority for dispensing away the departmental enquiry has been dealt by this Tribunal in various OAs qua the same department i.e. Delhi Police. It is observed that most of witnesses are official witness in criminal case; once the criminal trial and preliminary enquiry are possible, then departmental enquiry is also possible.
23. As stated above, the applicant is only Constable in 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. The preliminary enquiry was conducted by the respondents in order to construe that the allegations are true against the applicant that too at the back of the applicant. This fact clearly shows that Article 311 (2) (b) of the Constitution of India has been adopted as a convenient method in the present case. The impugned order is passed with the presumption that the allegations are proved against the applicant. In such a situation, Article 311 (2) (b) of the Constitution of India cannot be invoked on the same as it amounts to abuse of process of law. 18 Item No. 38 O.A. NO. 288/2024 WITH O.A. NO. 370/2024, O.A.NO. 263/2024
24. In the public interest and even as per Rule of law, it was incumbent upon the respondent 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 order to dispensing away with the Departmental Enquiry are just not tenable in the eyes of law. Article 311 (2) (b) of the Constitution of India has been used as a short cut method. Admittedly in the present case a Preliminary Enquiry was conducted through ACP/B. K. Road/NDD, the order of dismissal from service was passed by Disciplinary Authority, if preliminary enquiry is possible then disciplinary enquiry is also possible. This Tribunal in various judgments has allowed many petitions in respect of use of Article 311 (2) (b) of the Constitution of India, on the same ground that if PE is possible then DE is also possible.
25. The reasoning to dispense away with the departmental enquiry cannot be based on suspicion and surmises and probability. Once the Disciplinary Authority records that there is a probability that complainant and witness are put on constant fear and threat as a reason to dispense away with departmental enquiry, the onus to establish that such situation prevails is based on the efforts made by them to conduct departmental enquiry and imminent failure to hold the said departmental enquiry due to such actions of the applicant. Therefore, on the one hand taking no action to conduct disciplinary enquiry and while on the other citing the imaginary reasons of giving threat to witnesses etc., are the reasoning based on mere probability, suspicion and surmises and cannot be attached any credence. No material is placed before the authority to come to the conclusions that Departmental Enquiry is not possible and invocation of Article 311 (2) (b) of the Constitution of India is the only solution available to the respondents. 19 Item No. 38 O.A. NO. 288/2024 WITH O.A. NO. 370/2024, O.A.NO. 263/2024
26. It is also observed that the power under Article 311 (2) (b) of the Constitution of India has been invoked subsequent to a preliminary enquiry. The object of conducting the preliminary enquiry for invoking the power under Article 311 (2)
(b) of the Constitution of India is being laid down in circular dated 11.09.2007. The reason for dispensing away with the departmental enquiry is based on suspicion and surmises. No such material even through preliminary enquiry was conducted is being placed before any of the authorities on the basis of which the conclusion would be drawn that the departmental enquiry is not practicable or even remotely supports the vague reasons recorded to dispense with the departmental enquiry. The cases in which 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 pursuance of judgment of Hon'ble Tribunal in case of Suresh Kumar Vs. GNCTD in O.A. No. 2500/2006.
27. The Appellate Authority records that Preliminary Enquiry into the matter was conducted by ACP/B. K. Road/NDD. The facts and circumstance of the case were such that it was not reasonably practicable to conduct a regular departmental enquiry, cannot be a ground to invoke the Article 311 (2) (b) of the Constitution of India. The copy of preliminary enquiry report is not supplied to the applicant nor the applicant has been part of the preliminary enquiry but on the contrary the law is that Preliminary Enquiry is possible then even the departmental enquiry is also possible and in such cases the Article 311 (2) (b) of the Constitution of India is not invoked. The applicant is placing its reliance on the judgment of Hon'ble Tribunal decided on 23.04.2018 whereby the Hon'ble Tribunal after relying the judgment of Tarsem Singh, Hon'ble Apex Court whereby the Hon'ble Tribunal clearly stating "29. In Tarsem Singh's case Apex Court while allowing the appeals categorically observed " if a preliminary enquiry could be conducted, 20 Item No. 38 O.A. NO. 288/2024 WITH O.A. NO. 370/2024, O.A.NO. 263/2024 we fail to see any reason as to why a formal departmental enquiry could not have been initiated against the applicant. Reliance placed upon such a preliminary enquiry without complying with the minimal requirements of the principle of natural justice is against all canons of fair play and justice'. Accordingly, in the facts of the present OAs, we hold the issue in favour of the applicant. 30. In the circumstances and for the aforesaid reasons, all the OAs are allowed and the impugned orders are set aside with all consequential benefits. Since the applicant was under suspension as on the date of passing of the impugned orders, they would thus remain under suspension and the respondents shall take an appropriate decision regarding revocation or continuation of the same. The respondents shall proceed against the applicant departmentally, as per rules and the treatment of suspension period shall be dependent on the same. No costs. "
28. In the present case, when a Preliminary Enquiry is possible then even a Departmental Enquiry is also possible and thus the reasoning recorded by the Disciplinary Authority for dispensing away with the Departmental Enquiry is bad in law. As also stated above, the disciplinary authority did not even make the slightest possible effort to initiate a departmental inquiry as only after initiating a departmental inquiry a disciplinary authority can come to the conclusion that departmental inquiry is not reasonably practicable. Without making any efforts and only acting on the presumption and surmises, the disciplinary authority on its own, came to the conclusion that departmental inquiry is not practicable. No order for initiating the Departmental Enquiry was made by the department thus it is wrong to say that the present Departmental Enquiry is not reasonably practicable.
29. The disciplinary authority is not able to apply its mind that the power under Article 311 (2) (b) of the Constitution of India has to be exercised with a pre-
condition. The pre-condition is that if a disciplinary enquiry is not reasonably practical and to arrive at such conclusions, the Disciplinary Authority has to record reasons. The present reasoning is based on the assumption that the applicant has committed the alleged crime and thus departmental enquiry is not required. The Disciplinary Authority on the presumption that the act committed by the applicant is so grave that it is practically not feasible to conduct enquiry, hence, came to conclusion that there is no need to conduct the departmental 21 Item No. 38 O.A. NO. 288/2024 WITH O.A. NO. 370/2024, O.A.NO. 263/2024 enquiry the scrutiny of law for invoking the power under Article 311 (2) (b) of the Constitution of India. The law on the subject is that graver are the allegation then more opportunity should be provided to the delinquent official to submit the defence. The gravity of the charge will never be an imminent factor in deciding whether power under Art 311 (2) (b) of the Constitution of India is to be invoked or not.
30. The present case is a case of absolute misuse of power vested in the Disciplinary Authority under Article 311 (2) (b) of Constitution of India and hence bad in law. The reasons recorded by the 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 order to invoke the power under the Article 311 (2) (b) of the Constitution of India as being mentioned 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.
31. The applicant preferred an appeal against the punishment order of dismissal dated 25.05.2023 (Annexure-A/1). The Appellate Authority rejected the appeal on 11.01.2024 (Annexure-A/2) by an absolutely non-speaking and mechanical order.
The Appellate Authority failed to apply its mind that the law quoted by the 22 Item No. 38 O.A. NO. 288/2024 WITH O.A. NO. 370/2024, O.A.NO. 263/2024 applicant in the statutory appeal clearly establishes that the reasons recorded for dispensing with the DE are not legally tenable in the eyes of law. The present case is not a case for invoking the power under Article 311 (2) (b) of the Constitution of India. The Hon'ble Apex court has laid down clearly 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.
32. The applicant has placed reliance on the order/judgment passed by this Tribunal in OA No. 2295/2021 in the case of Bhopal Singh Vs. Commissioner of Police & Ors. decided on 02.08.2022, that case deals with imposition of provision of Article 311 (2) (b) of the Constitution of India. On this subject, this Tribunal has decided a number of cases. We examine the law laid down on this subject in some of the decided cases. In 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 18 OA No.1019/2023 nothing is brought on record that witness (es) has/have been threatened by the applicant or they were too scared of the applicant to come forward in the regular enquiry proceedings. It is also found that the disciplinary authority while passing the impugned order has very casually come to the conclusion that it would not be possible to conduct the departmental enquiry against the applicant, as no reason at all has been recorded in this regard and the applicant is guilty of committing grave misconduct and was involved in the aforesaid offences.23
Item No. 38 O.A. NO. 288/2024 WITH O.A. NO. 370/2024, O.A.NO. 263/2024
10. Having regard to the above, we are of the considered view that impugned orders passed by the respondents are not only in violation of the settled law but also of their own circular dated 11.9.2007. The reasons given by the respondents for dispensing with the enquiry are not in consonance with the law settled by the Hon'ble Supreme Court and Hon'ble High Courts and followed by this Tribunal in a catena of cases, including in one referred to hereinabove.
11. In view of the aforesaid facts and circumstances of the present case, we are of the considered view that the instant OA is squarely covered by the common 19 OA No.1019/2023 Order/Judgment dated 10.2.2022 in Ct. Sumit Sharma (supra) and a batch of cases. Therefore, the present OA deserves to be partly allowed and hence, the same is partly allowed with the following directions:- (i) Orders dated 03.10.2022 (Annexure A/1) and dated 10.3.2023 (Annexure A/2) passed by the disciplinary and appellate authorities respectively are set aside; (ii) The applicant shall be entitled to all consequential benefits in accordance with the relevant rules and law on the subject;
(iii) The respondents shall implement the aforesaid directions within eight weeks of receipt of a copy of this order; and (iv) However, the respondents shall be at liberty to initiate disciplinary proceedings against the applicant in accordance with the law.
12. However, in the facts and circumstances, there shall be no order as to costs."
33. 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 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 24 Item No. 38 O.A. NO. 288/2024 WITH O.A. NO. 370/2024, O.A.NO. 263/2024 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."
34. 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:-
"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 25 Item No. 38 O.A. NO. 288/2024 WITH O.A. NO. 370/2024, O.A.NO. 263/2024 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."
35. 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 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 26 Item No. 38 O.A. NO. 288/2024 WITH O.A. NO. 370/2024, O.A.NO. 263/2024 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."
36. 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.27
Item No. 38 O.A. NO. 288/2024 WITH O.A. NO. 370/2024, O.A.NO. 263/2024
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."
37. In the Special Leave to Appeal (C) No. 11681/2024 filed by the Commissioner of Police & Anr. Vs. Jagmal Singh, the Hon'ble Supreme Court vide its judgment on 10.07.2024 has dismissed the said SLP and the judgment of Hon'ble Court of Delhi attained finality.
38. 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 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 28 Item No. 38 O.A. NO. 288/2024 WITH O.A. NO. 370/2024, O.A.NO. 263/2024 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 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.
39. 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 29 Item No. 38 O.A. NO. 288/2024 WITH O.A. NO. 370/2024, O.A.NO. 263/2024 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.
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.
Let Const. (Exe.) Sant Ram, No.324/PTC (PIS No.28060573) be informed accordingly.
40. 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.30
Item No. 38 O.A. NO. 288/2024 WITH O.A. NO. 370/2024, O.A.NO. 263/2024 This issues with the approval of Commissioner of Police, Delhi.
(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 it is not practicable to hold an 31 Item No. 38 O.A. NO. 288/2024 WITH O.A. NO. 370/2024, O.A.NO. 263/2024 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""
41. 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 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."
42. Having regard to the above, we are of the considered view that impugned orders passed by the respondents are in violation of the settled law. The reasons given by the respondents to dispense away with the enquiry are not in consonance with the law settled by the Hon'ble Supreme Court and Hon'ble High 32 Item No. 38 O.A. NO. 288/2024 WITH O.A. NO. 370/2024, O.A.NO. 263/2024 Court(s) and followed by this Tribunal in a catena of cases, a few of which are referred to hereinabove.
43. 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 25.05.2023 (Annexure-A/1) of the Disciplinary Authority and dated 11.01.2024 (Annexure-A/2) of the Appellate Authority, are set aside;
(ii) The applicant is reinstated in service and shall be entitled to all consequential benefits in accordance with the relevant rules and instructions on the subject;
(iii) The respondents shall implement the aforesaid directions within eight weeks of receipt of a copy of this order; and
(iv) However, the respondents shall be at liberty to initiate disciplinary proceedings against the applicant in accordance with the law.
(v) No order to cost. Pending MAs, if any, stand closed."
7. It is apparent from the proceedings available on record, as well as, undisputed that the reasons given by the respondents in orders impugned in the present O.A. and also those in the order(s) as impugned in the case of Ankit Kasana (Supra) are wholly similar.
8. In the light of the above, present O.As are allowed with the following orders:-
33
Item No. 38 O.A. NO. 288/2024 WITH O.A. NO. 370/2024, O.A.NO. 263/2024
(i) The impugned disciplinary order(s)/appellate order(s) dated 09.05.2023 and 11.12.2023 (Annexure A/1 and A/2 respectively) in O.A. No. 288/2024, order(s) dated
09.05.2023 and 11.12.2023 (Annexure A/1 and A/2 respectively) in O.A. No. 370/2024, order(s) dated 09.05.2023 and 11.12.2023 (Annexure A/1 and A/2 respectively) in O.A. No. 263/2024, are set aside.
(ii) The applicants shall be reinstated in service and shall be entitled to all consequential benefits in accordance with the relevant rules and instructions on the subject.
(iii) The respondents shall implement the aforesaid
directions within 8 weeks of receipt of a copy of this
order;
(iv) The respondents shall be at liberty to initiate
disciplinary proceedings against the applicants in
accordance with law, however, there shall be no
34
Item No. 38 O.A. NO. 288/2024 WITH O.A. NO. 370/2024, O.A.NO. 263/2024
order as to cost. Pending M.A.(s), if any, shall stand
disposed of, accordingly.
(B.Anand) (R.N. Singh)
Member (A) Member (J)
kk/