Central Administrative Tribunal - Delhi
Bhopal Singh vs Comm. Of Police on 2 August, 2022
1 O.A. No2295 of 2021
Central Administrative Tribunal
Principal Bench,, New Delhi
O.A. No.2295
2295 of 2021
Orders reserved on : 21.07.2022
.07.2022
Orders pronounced on ::02.8.2022
.2022
Hon'ble Mr. R.N. Singh, Member (J)
Hon'ble Shri Tarun Shridhar
Shridhar, Member (A)
Bhopal Singh
S/o Sh. Ratan Lal
R/o H. W. 111
3rd Floor, Krishan Kunj,
Laxmi Nagar,
Delhi.
(Aged about 59 years)
...Applicant
(through Advocate Shri Ajesh Luthra
Luthra)
Versus
1. Commissioner of Police,
Delhi Police Hdqrs, (New Building),
Behind Parliament Street Police Station,
New Delhi-110001.
Delhi
2. Joint Commissioner of Police (Eastern Range),
Delhi Police Hdqrs, (New Building),
Behind Parliament Street Police Station,
New Delhi-110001.
Delhi
3. Deputy Commissioner of Police,
(North
(North-East District)
Office of DCP/NE
Seelam Pur, Delhi-110053.
Delhi
... Respondents
(through Advocate Shri H.A. Khan
Khan)
2 OA No.2295 of 2021
ORDER
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 11.5.2019 (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 30.09.2021 (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 with all consequential benefits including seniority and back wages.
2. Brief facts leading to filing of the present OA are that the applicant was initially appointed as Constable (Exe.) in Delhi Police on 12.1.1984 and thereafter earned two promotions and reached to the rank of Assistant Sub Inspector in Delhi Police.
2.1 While the applicant was working as Asst. Sub Inspector, a case vide RC-DAI-2019-A-0016 was registered 3 OA No.2295 of 2021 at PS CBI/ACB/New Delhi on 7.5.2019 under Section 7 of Prevention of Corruption Act, 1988 on the basis of written complaint dated 06.05.2019 alleging bribe. CBI appears to have prepared verification memo in the presence of independent witness. On the basis of the aforesaid followed by a preliminary enquiry by the respondents, the applicant was dismissed by the Disciplinary Authority vide impugned order dated 11.05.2019 (Annexure A/2) without conducting regular departmental enquiry, which is necessary under law to establish the allegations and without affording any opportunity to the applicant to defend himself. The contents of the impugned order dated 11.05.2019 read as under:-
"It has been reported by Sh. Asra Garg, Head of Branch, Anti-Corruption Branch, Lodhi Road, New Delhi that a case RC-DAI-2019-A- 0016 dated 07.05.2019 has been registered at PS CBI/ACB/New Delhi against accused Bhopal Singh, ASI, Delhi Police, PS Laxmi Nagar, Delhi u/s 7 of PC, Act, 1988 (as amended in 2018) on the basis of a written complaint dated 06.05.2019 of Sh. Arun Kumar Ojha, r/o A-805, Gardenia Greens, Sec.-18, Vasundhra, Ghaziabad addressed to the Supdt. Of Police, CBI, ACB, Delhi alleging therein that accused Bhopal Singh accepted bribe of Rs. 2 lakhs from the complainant on 07.05.2019 and absconded from the spot after handing over the tainted bribe amount to his relative namely Sh. Rajkumar Sugandh. The bribe amount has been recovered and seized. Accused Sh. Bhopal 4 OA No.2295 of 2021 Singh, ASI is still absconding and he was also not found in PS Laxmi Nagar, Delhi.
As per verification memo. in CO-
22/2019/CBI/ACB/Delhi, dated 06.05.2019 prepared by CBI officials, the allegations mentioned in the complaint were verified in the presence of independent witness by Sh. Vinod Kumar, Sub. Inspr. CBI, ACB Delhi. The verification report prima facie disclosed the commission of an offence punishable u/s 7 of PC Act, 1988 (as amended in 2018) against Sh. Bhopal Singh, ASI, Delhi. The complainant is associated with some builders in Noida and Ghaziabad for last 14-15 years. It has been alleged that an FIR No. 556/18 dated 16.11.18 was registered in PS Shakarpur, Delhi against the complainant Sh. Arun Kumar Ojha. ASI Bhopal Singh of PS Shakapur is the I.O. of the said case. It has been further alleged in the complaint that Sh. Arun Kumar Ojha met ASI Bhopal Singh of PS Shakapur (suspect Officer) on 05.05.2019 where the Suspect Officer demanded a bribe of Rs. 3 Lakh from the complainant. On query, the complainant further informed that one more complaint was also lodged against him in the same police station during March 2019 by Sh. Ashok Kumar Srivastava in a matter of allocation of Flat and that matter is also dealt with by ASI Bropal Singh as it is connected with the above mentioned FIR. The complainant further informed that his matter had been settled between the complainant and Sh. Ashok Kumar Srivastava by providing extra amenities in his allotted flat of value approx. Rs. 3 Lakhs to Sh. Ashok Kumar Srivastava as the complainant was not able to provide the desired flat to him.
However, ASI Bhopal Singh told the complainant that the matter is still pending with him and a FIR could be registered against the complainant. The ASI had called the complainant on mobile number 9818253310 from his mobile number 9891103388 on 04.05.2019 and directed him to meet him at 5 OA No.2295 of 2021 PS/Shakarpur to settle the matter. Thereafter, on 05.05.2019, at around 12 PM, the complainant met ASI Bhopal Singh at PS/Shakarpur where he demanded a brlbe of Rs. 3 Lakhs and told him that if the demanded bribe amount was paid to him, then the complainant would not have to worry about his matter with Sh. Ashok Kumar Srivastava and the FIR registered against him being investigated by the ASI.
A preliminary enquiry into the matter has been got conducted through ACP/P.G. Cell, East District, which revealed that:
ASI Bhopal Singh, No. 3743/E (now 2977/D) posted in PS/Laxmi Nagar demanded and accepted the bribe of Rs. 02 Lakhs from Arun Kumar Ojha who is alleged person in case FIR No. 556 dated 16.11.2018 u/s 420/406/34 IPC PS/Shakarpur.
ASI Bhopal Singh, No. 3743/E (now 2977/D) absconded from the spot after handing over the tainted bribe amount to his relative namely Raj Kumar Sugandh. The bribe amount has been recovered and seized.
ASI Bhopal Singh, No. 3743/E (now 2977/D) was found actively involved in the commission of an offence of POC Act, 1988. He has involved himself in the case with some ulterior motive which is not acceptable in a disciplined force.
That the acts and omissions on the part of ASI Bhopal Singh, 3743/E amounts to gross criminal misconduct and corrupt mal-practice unbecoming of a Police Officer.
The misconduct and active criminal involvement of ASI Bhopal Singh was 6 OA No.2295 of 2021 found in case FIR No. RC-DAI-2019-A-
0016, u/s 7 PC Act 1988, dated 07.05.2019 as per report of CBI. ASI Bhopal Singh is not fit to be part of Disciplined Force. Police service stands for sacrifice, dedication and honesty. ASI Bhopal Singh demeaned the very oath which every Police Officer takes before joining the Police Force. As such his criminal act is beyond pardonable capacity of any authority bound by morals and conduct rules. The service of ASI Bhopal Singh is no more desirable in Delhi Police. So, a stern departmental action needs to be taken against ASI Bhopal Singh in the interest of public at large and prevent further loss of image and credibility of Delhi Police.
The above criminal act on part of the appellant Ex. ASI Bhopal Singh, No. 3743/E (now 2977/D) as revealed from the letter of CBI & the PE conducted by ACP/P.G. Cell, East District is highly abhorrent on his part being a member of a disciplined force. He has misused his official position and involved himself in malpractices to fulfill his corrupt desires. Indulging in corruption is not only an immoral/reprehensible act but also amounts to grave misconduct by a police officer being a public servant entrusted with the responsibility of protecting the members or the society. Not only he has indulged in a blatant act of corruption but has absconded from the scene of crime to evade the process of law which shows his highly criminal disposition and devious bent of mind. While at large, possibility of misusing his official position to influence or threaten the witnesses cannot be ruled out. This act of ASI Bhopal Singh, No. 3743/E (now 2977/D) has not only tarnished the image of Delhi Police but has also badly shattered the faith of common man in the police force. Such act on the part of a police person must be curbed with a heavy hand. The misconduct on the part of ASI Bhopal Singh, 7 OA No.2295 of 2021 No. 3743/E (now 2977/D) is of such a grave nature that his further retention in police service would be disastrous for the police force and any leniency to him will demoralize other police officials who are performing their duties honestly and sincerely. Police service stands for sacrifice, dedication and honesty. His gross misconduct has demeaned the very oath which every police officer takes before joining police force. As such, his criminal act is beyond pardonable capacity of any authority bound by morals and conduct rules. The nature and gravity of his criminal act renders him completely unfit for the department and warrants exemplary punishment (i.e. dismissal from service) in the interest of public at large and to prevent him from causing further damage to the image & credibility of Delhi Police.
Further, the facts of the case are such that it would not be reasonably practicable to hold a regular departmental enquiry against ASI Bhopal Singh No. 3743/E (who is presently absconding and evading his arrest) before dismissal him from service as there is high probability of threat; inducement and intimidation to the complainant & the witnesses by him and his affiliations. There is every likelihood that the witnesses are not likely to come forward to depose against ASI Bhopal Singh, No.3743/E during departmental enquiry due to fear of their life and property.
Keeping in view the overall facts and circumstances of the case, I, Jasmeet Singh, Dy. Commissioner of Police, East District, Delhi hereby dismiss ASI Bhopal Singh, No.3743/E from service with immediate effect under Article 311(2) (b) of the Constitution of India.
He will deposit all of his Govt. belongings in his possession i.e. Identity Card, CGHS Card, Clothing articles etc. with the respective stores/Branches of East District."
8 OA No.2295 of 20212.2 The appeal preferred by the applicant against the aforesaid order of the Disciplinary Authority was rejected by the Appellate Authority vide order dated 30.9.2021 (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. During the hearing, at the outset, Shri Luthra, 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. He has also submitted that the case of the applicant is also squarely covered by the Order/Judgment dated 11.12.2019 of the Hon'ble Delhi High Court in Writ Petition (Civil) No.4078/2017, titled Commissioner of Police and others vs. Ashwani Kumar and others, in view of the fact that reasons deducted by the disciplinary 9 OA No.2295 of 2021 authority while passing the aforesaid order, as noted hereinabove, are not sustainable in law as the similar grounds have already been considered and held to be not justified by this Tribunal while deciding the aforesaid cases in which this Tribunal has also taken note of the aforesaid Order/Judgment of the Hon'ble Delhi High Court besides considering plethora of judgments. He has further argued that the impugned appellate authority's order is also bad in as much none of the grounds raised in the statutory appeal has been considered and the appeal has been rejected in a cyclostyled manner. 4.1 On the strength of the aforesaid, counsel for the applicant has argued that disciplinary and appellate authorities have not correctly applied their mind to the facts of the case and therefore, the impugned orders are absolutely illegal, arbitrary and unconstitutional. He has further submitted that the applicant is entitled to the Constitutional protection as envisaged under Article 311 of the Constitution as it is trite in law that dispensation of departmental enquiry is an exception whereas holding of a departmental enquiry is a rule. From perusal of the aforesaid impugned orders, it is clear that the applicant 10 OA No.2295 of 2021 has been condemned unheard as the allegations against the applicant have not been established by way of a regular departmental enquiry and the applicant has been denied reasonable opportunity to defend himself. He has further submitted that the applicant is a regular employee and has also earned two promotions in his service career due to efficiency and honesty and therefore, he cannot be just thrown out of service without any enquiry. Shri Luthra by referring to the provisions of the Article 311 of the Constitution of India has submitted that the Hon'ble Supreme Court in Tulsiram Patel's case, reported in AIR 1985 SC 1416, has held as follows:-
"It would not be reasonably practicable to hold the inquiry, but some instances by way of illustration may, however, be given. It would not be reasonably practicable to hold an inquiry where the government servant, particularly through or together with his associates, so terrorizes, threatens or intimidate witnesses who are going to give evidence against him with fear of reprisal as to prevent them from doing so or where the government servant by himself or together with or through other threatens, intimidates and terrorizes the officer who is the disciplinary authority or member of his family so that he is afraid to hold the inquiry or direct it to be held. It would also not be reasonably practicable to hold the inquiry where an atmosphere of violence or of general indiscipline and insubordination prevails, and it is immaterial whether the concerned government 11 OA No.2295 of 2021 servant is or is not a party to bringing about such an atmosphere.
In this connection, we must bear in mind that numbers coerce and terrify while an individual may not. The reasonable practicability of holding an inquiry is a matter of assessment to be made by the disciplinary authority. Such authority is generally on the spot and knows what is happening. It is because the disciplinary authority is the best judge of this that clause (3) of Article 311 makes the decision of the disciplinary authority on this question final. A disciplinary authority is not expected to dispense with a disciplinary inquiry lightly or arbitrarily or out of ulterior motives or merely in order to avoid the holding of an inquiry or because the Department's case against the government servant is weak and must fail. The finality given to the decision of the disciplinary authority by Article 311 (3) is not binding upon the court so far as its power of judicial review is concerned and in such a case the court will strike down the order dispensing with the inquiry as also the order imposing penalty."
4.2 Shri Luthra 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 12 OA No.2295 of 2021 circumstances law permits the department to dispense with the enquiry and other legal formalities, which is not the case of the applicant.
4.3 Learned counsel for the applicant has further argued that the disciplinary and appellate authorities have ignored the circular dated 28.12.1998, which categorically stipulates that dismissal of the Police Officers involved in the cases of Rape and Dacoity and any such heinous offences by resorting to the provisions of Article 311(2)(b) of the Constitution of India is illegal and such dismissal without conducting departmental enquiry is illegal because in such cases departmental enquiry can be conveniently held. He has further emphasised that this case is of such a nature in which departmental enquiry can be initiated and the reasons 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 held the applicant guilty of the misconduct without affording him opportunity of defence at his back and that too on the basis of a preliminary enquiry report. Further, 13 OA No.2295 of 2021 it is argued that the Appellate Authority has passed the appellate order in a mechanical manner.
5. Per contra, Shri Khan, learned counsel for the respondents with the assistance of the counter reply, has submitted that the disciplinary authority has rightly dismissed the applicant from the service by invoking the provisions of Article 311(2)(b) of the Constitution of India and that too, after holding a preliminary inquiry in the matter in the interest of justice and the appeal of the applicant was rightly rejected by the appellate authority.
6. On our query to the learned counsel for the respondents that as to why the instant case be not decided on the basis of the common Order/Judgment passed by this Tribunal (authored by one of us, namely Shri R.N. Singh, Member (J)), while deciding a batch of cases titled Ct. Sumit Sharma vs. Govt. of NCT of Delhi (supra) as the similar kind of grounds, as taken by the Disciplinary Authority for invoking the provisions of Article 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:-
14 OA No.2295 of 2021
"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 15 OA No.2295 of 2021 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 16 OA No.2295 of 2021 view is supported by the binding judicial precedents, referred to hereinabove.
48. In view of the aforesaid, we are of the considered view that the aforesaid OAs deserve to be partly allowed and the same are partly allowed with the following directions:-
(i) Order(s) passed by the disciplinary and appellate authorities in the aforesaid OAs are set aside with all consequential benefits to the applicants in accordance with the relevant rules and law on the subject; and
(ii) However, the respondents shall be at liberty to initiate disciplinary proceedings against the applicant(s) in accordance with the law."
and that the aforesaid Common Order/Judgment has attained finality as the respondents therein have implemented the same by passing the order dated 29.3.2022, a copy of which is placed on record by the learned counsel for the applicant, the learned counsel for the respondents has not been able to give any cogent reason. However, he has reiterated that the aforesaid impugned orders are in order. It is found that there is no evidence or document to indicate that in view of the facts and circumstances of the case, any efforts was made by them 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 17 OA No.2295 of 2021 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. 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 28.12.1998. 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 18 OA No.2295 of 2021 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 11.5.2019 (Annexure A/2) and dated 30.9.2021 (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 19 OA No.2295 of 2021
(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/