Central Administrative Tribunal - Delhi
Samit Kumar vs Comm. Of Police on 15 October, 2024
1
OA No. 737/2020
Item No. 7/C-II
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 737/2020
Reserved on: - 10.09.2024
Pronounced on: - 15.10.2024
Hon'ble Mr. R. N. Singh, Member (J)
Hon'ble Mr. Rajinder Kashyap, Member (A)
Samit Kumar, Group „C‟
Ex Constable (Ex.) of Delhi Police
PIS No. 28105140
Aged about 30 Years
S/o Sh. Suresh Ohlan
R/o VPO : Garhi Sampla,
PS : Sampla; Rohtak, Haryana ... Applicant
(By Advocate: Mr. Sachin Chauhan)
Versus
1. Delhi Police
Through Commissioner of Police,
New PHQ, Jai Singh Road, New Delhi.
2. Joint C. P. (Northern Range)
PHQ, IP Estate, New Delhi.
3. D. C. P (Rohini Distt.)
Pocket-5, Rohini, Delhi-85. ... Respondents
(By Advocate: Thakur Virendra Pratap Singh)
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OA No. 737/2020
Item No. 7/C-II
ORDER
Hon'ble Mr. Rajinder Kashyap, Member (A):-
By way of the present OA filed u/s 19 of the AT Act, 1985, the applicant, in Para 8 of the OA, has prayed for the following reliefs: -
"1. To quash and set aside Order of dismissal dt. 11.5.2018 & Appellate Order dt. 4.2.2020 and direct the respondents to reinstate the applicant into service with all consequential benefits including promotion/seniority and arrears of pay since the applicant is not able to get job despite his best efforts and is unemployed.
2. To award costs in favour of the applicant and pass any order or orders which this Hon'ble Tribunal may deem just & equitable in the facts & circumstances of the case."
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 working as Constable in Delhi Police. The applicant states that he was falsely implicated in FIR No. 223/18 dt. 10.05.2018 u/s 7/8/13 POC Act & 341/342/120-B IPC, PS Bhalswa Dairy, Delhi and arrested on the same day. The charge sheet in the said FIR is yet to be filed after investigation. The applicant submits that he was released on bail 07.06.2018. The applicant further submits that the Disciplinary Authority decided to dispense away with the 3 OA No. 737/2020 Item No. 7/C-II enquiry for the sole reason that the department‟s case against the applicant is very weak and will fail. In the order of punishment, there is no mention of the fact that the Disciplinary Authority had ever tried to hold a departmental enquiry on the allegations/misconduct as mentioned in the order on the basis of which the applicant was dismissed from service by invoking the powers under Article 311 (2) (b) of the Constitution of India without any evidence as to how the holding of departmental enquiry is not practicably possible.
4. The reasons recorded by the Disciplinary Authority to dispense away with the enquiry are vague and totally unsustainable in law. The Disciplinary Authority has nowhere pointed out any evidence as to how holding of DE is not reasonably practical. There is no material with the Disciplinary Authority which could show that the witnesses were threatened by the applicant in form of any complaint by the witnesses regarding threatening notes/calls by the applicant. The Disciplinary Authority even without making any efforts to initiate the DE, call the witnesses by way of notices, presumed the applicant guilty of charges leveled against him in criminal case to be true. He states that this indicates that opinion of the Disciplinary Authority is based on merely presumptions. He refers to the judgment of Hon‟ble Supreme Court in the matter of Chief Security Officer Vs. Singasan Rabidas 1991 (5) J. T 117 wherein it was held that even otherwise the dispensing of the 4 OA No. 737/2020 Item No. 7/C-II enquiry for even non deposition of witness due to fear was held to be illegal by the Hon‟ble Supreme Court.
5. The applicant states that the order of dismissal dispensing with the enquiry is in violation of Rule 17 (b) of Delhi Police (Punishment & Appeal) Rules which categorically provides that the procedure laid down with regard to the conduct of departmental enquiry can be dispensed away with if Police Officer charged with misconduct refuses or fails to attend the enquiry without reasonable excuse or has absconded or has deserted or cannot be found without inordinate delay and no other ground, which is not the position/grounds taken by the Disciplinary Authority for dispensing away with the enquiry. Therefore, the order of dismissal dispensing with enquiry being in violation of aforesaid rule is liable to be set aside/quashed. He further states that the decision taken by the Disciplinary Authority is merely based on suspicions, surmises and presumption. Therefore, the order of punishment is legally not sustainable and is liable to be set aside/quashed.
6. The applicant contends that the order dispensing with the enquiry is in violation of their own circular dated 08.11.1993 and reissued on 31.12.1998 which categorically provides that the powers under Article 311 (2) (b) of the Constitution of India is not to be used as a short-cut and if the Police Officers involved in the 5 OA No. 737/2020 Item No. 7/C-II cases of rape or dacoity or any other such heinous offence are dismissed straightway under Article 311 (2) (b) of the Constitution of India despite that fact that criminal cases had been registered, such dismissals without holding DEs are illegal because in such cases departmental enquiry is illegal and is liable to be set aside/quashed. He further contends that the seriousness of charges cannot be the basis of invoking Article 311 (2) (b) of the Constitution of India and dispense with the enquiry. The Disciplinary Authority has nowhere recorded any evidence to conclude that the holding of departmental enquiry is not practicable. It is further contended that even if the Disciplinary Authority did not feel to conduct regular departmental enquiry, the Appellate Authority can consider whether there is possibility of holding disciplinary enquiry at the time of deciding the present appeal as per the judgment of Hon‟ble Supreme Court in the matter of Tulsi Ram Patel's Case. However, the appeal has been rejected without considering the feasibility of holding departmental enquiry.
7. Learned counsel for the applicant has placed reliance on the order/judgment dated 14.08.2024 passed by the Hon‟ble High Court in W.P. (C) 11276/2024 titled as The Commissioner of Police & Ors. vs OM Prakash & anr., 6 OA No. 737/2020 Item No. 7/C-II
8. Feeling aggrieved by the aforesaid act of the respondents, the applicant approached this Tribunal by way of the present OA.
9. Counter reply has been filed by the respondents on 04.04.2022 wherein it is stated that on 11.05.2018, an information was received from the Duty Officer/Police Station Bhalswa Dairy that Constable Samit Kumar (i.e. Applicant) has been arrested in case FIR No. 223/2018 dated 10.05.2018 u/s 7/8/13 (1) (d), POC Act and 341/342/120B IPC, PS Bhalswa Dairy, Delhi. On 10.05.2018, the applicant was on duty at Police Picket Mukarba Chowk under the jurisdiction of Police Station Samay Pur Badli and relieved by Constable Vinod at 8 A.M. It has come to notice that he alongwith one of his friend namely Dinesh S/o Chhote Lal, R/o Village Noorpur, PS Sakeed, District Etah, (UP), had apprehended one person namely Dy Changki Anal S/o Dariyal Alam R/o Flat No. R- 18, Building No.180, B-Block, Vasant Kunj, Masoodpur, South West Delhi, with 50 grams of Narcotics Drug (Smack). Instead of informing any of his supervisory officer or the SHO/Samay Pur Badli or any competent agency, the applicant alongwith his friend Dinesh took Dy Changki Anal to the rented house of Dinesh i.e. Gali No.16, E-Block, Swami Shardhanand Colony, Delhi. They were trying to extort Rs. 70,000/- from Dy Changki Anal, on the pretext of avoiding the registration of FIR. On a secret information, Shri Rakesh Tyagi, ACP/Jahangir Puri, Delhi alongwith SHO / Bhalswa Dairy and staff apprehended all the 7 OA No. 737/2020 Item No. 7/C-II three persons from the above premises and two cases vide FIR No.223/18 dated 10.05.2018 under Section 7/8/13 (1) (d) POC Act and 341/342/120B IPC against the Applicant and FIR No.224/18 dated 10.05.2018 under Sections 21/61/85 NDPS Act, against the accused Dy Changki Anal have been registered at PS Bhalswa Dairy, Delhi.
10. Pursuant to the arrest of the applicant in case FIR No.223/2018 dated 10.05.2018 at PS Bhalswa Dairy, Delhi the applicant was placed under suspension w.e.f. 11.05.2018 (i.e. from the date of his arrest) vide order dated 11.05.2018. The respondents submit that the applicant being a member of disciplined force has been found indulged into such a shameful act of moral turpitude and thus violated all norms of ethics and morally. The applicant‟s above act had not only tarnished the image of police department in the society but also shaken the faith of the citizens in the entire police force. By involving in such illegal act, applicant has lowered the image and goodwill of uniformed organization which is not acceptable from a Police Officer whose prime duty/responsibility was to safeguard the spirit of the law. He had acted in the most reprehensible manner, which is unexpected from the member of the disciplined force like Delhi Police. His act had put a blot on the police force. Corruption is eating into the vitals of our society and if the guardians of law themselves indulge in such nefarious activities in flagrant 8 OA No. 737/2020 Item No. 7/C-II violation of decent behavior, it becomes all the more important to check them forth. Therefore, continuance in the police force of applicant who indulged in such a grave misconduct and reprehensible activities would have been highly objectionable and hazardous for public interest.
11. The respondents submit that further retention of the applicant in police force was undesirable and absolutely unwarranted. Therefore, the Disciplinary Authority, after taking prior approval of Special C.P. (L&O)/North, awarded the punishment of "DISMISSAL" from service to the Applicant under Article 311 (2)
(b) of the Constitution of India vide Order dated 11.05.2018 and his suspension period from 11.05.2018 to the date of issue of punishment order was also decided as period not spent on duty for all intents and purposes.
12. Being aggrieved with the above punishment order passed by the Disciplinary Authority, the applicant had preferred an Appeal before the Appellate Authority i.e. the Joint Commissioner of Police, Northern Range, Delhi. The same was duly considered and rejected by the Appellate Authority by passing a detailed and speaking order vide order dated 04.02.2020. The appeal of the applicant was duly considered and rejected by the Appellate Authority by passing a detailed and self-speaking order. Hence, there is no legal ground to challenge the same. 9 OA No. 737/2020 Item No. 7/C-II
13. The Disciplinary Authority while issuing punishment order dated 11.05.2018 (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:-
"And whereas, on a secret information, Shri Rakesh. Tyagi; ACP/Jahangir Puri, Delhi alongwith SHO/Bhalswa Dairy and staff apprehended all the three persons from the above premises and two cases vide FIR No. 223/18, dated 10/05/2018 u/s 718/13 (1)(d) POC Act & 341/342/120-B, IPC against defaulter Constable Samit Kumar. No: 1543/RD and FIR No. 224/18, dated 10/05/2018 u/s 21/61/85 NDPS Aot, against accused Dy Changki Anal have been registered at PS Bhalswa Dairy Delhi And whereas, on having been arrested in case FIR No. 223/2018 dated 10/05/2018 u/s 7/8/13 (1) (d), POC Act and 341/342/120-B, IPC, PS Bhalswa Dairy, Delhi, Constable Samit Kumar, No. 1543/RD has been placed under suspension w.e.f. 11/05/2018 (i.e. the date of his arrest) vide order No. 4688-4720/HAP/RD(P-I), dated 11/05/2018.
And whereas, Constable Samit Kumar, No. 1543/RD, being a member of disciplined force has indulged into such a shameful act of moral turpitude and violated all norms of ethics and morality. His above act has not only tarnished the image of police department in the society but also rudely shaken the faith of the citizens in the entire police force. By lowering the image and goodwill of uniformed organization which is not acceptable from a police officer whose prime duty/responsibility is to safeguard the spirit of the law. He has acted in the most reprehensible manner, which is unexpected from the member of the disciplined force. His act has put a blot on the police force. Corruption is eating into the vitals of our society and if the guardians of law themselves indulge in such nefarious activities in flagrant violation of decent behavior, it becomes all the more important to check them forth. Therefore, continuance in the police force of such policeman who indulged in such a grave 10 OA No. 737/2020 Item No. 7/C-II misconduct and reprehensible activities would be highly objectionable and hazardous for public interest.
And whereas, the act and conduct of accused Constable Samit Kumar, No. 1543/RD warrants his dismissal from the service under Article 311(2)(b) of the Constitution of India at first instance without following the procedure of regular departmental proceedings, although the purpose for fact finding is really not needed as case FIR No. 223/2018 dated 10/05/2018 /s 718/13(1) (d), POC Act and 341/342/120-B, IPC, PS Bhalswa Dairy, Delhi, makes the sequence of events and corruption act of the accused Constable, crystal clear. Besides, holding of the departmental proceedings will not be practicable due to intimidation, inducement, affiliation of material witnesses by the accused Constable.
And whereas, in order to send a clear message to such undesirable person and to prevent the recurrence of such an incident, it has become necessary to dismiss accused Constable Samit Kumar, No. 1543/RD from service. Assessing totality of the facts and circumstances of the case as mentioned above, I am of the firm view that the act of the accused Constable who is presently in judicial custody attracts the provisions of Article 311(2)(b) of the Constitution of India and makes him completely unfit for police service. The misconduct on the part of Constable Samit Kumar, No. 1543/RD is of such a grave nature that his further retention in the police service would be disastrous for the force and any leniency to him, will send a wrong message to the other police officials who are performing their duties with honesty and sincerity.
Hence, considering the above facts in totality, further retention of Constable Samit Kumar, No. 1543/RD (PIS No. 28105140) in police force is undesirable and absolutely unwarranted. Therefore, I, Rajneesh Gupta, IPS, Deputy Commissioner of Police, Rohini District, Delhi, being competent authority, hereby dismiss Constable Samit Kumar, No. 1543/RD (PIS No. 28105140) from the Delhi Police Force under Article 311(2)(b) of the Constitution of India with immediate effect. His suspension period upto the date of issue of this order is also decided as period not spent on duty for all intents and purposes."11 OA No. 737/2020
Item No. 7/C-II
14. The applicant has stated that he had filed an appeal against the punishment order. However, Appellate Authority vide order dated 04.02.2020 (Annexure-A/2) decided his appeal. For facility of reference, it would be appropriate to quote the relevant portion of the appellate order, the same reads as under:-
"On a secret information, Shri Rakesh Tyagi, ACP/Jahangir Puri, Delhi alongwith SHO/Bhalswa Dairy and staff apprehended all the three persons from the above premises and two cases vide FIR No. 223/18, dated 10.05.2018 u/s 7/8/13 (1)(d) POC Act & 341/342/120-B, IPC against the appellant Const. Samit Kumar, No. 1543/RD and FIR No. 224/18 dated 10.05.2018 u/s 21/61/85 NDPS Act against the accused Dy Changki Anal were registered at Police Station Bhalswa Dairy, Delhi. The appellant was arrested in the case registered against him.
On having been arrested in case FIR No.223/18 dated 10.05.2018 u/s 7/8/13 (1) (d) POC Act & 341/342/120- B, IPC PS Bhalswa Dairy, Delhi the appellant Samit Kumar, No. 1543/RD had been placed under suspension w.e.f. 11.05.2018 (i.e. the date of his arrest) vide order No. 4688-4720/HAP(P-I)/RD, dated 11.05.2018.
The appellant Const. Samit Kumar, No. 1543/RD, being a member of disciplined force has indulged into such a shameful act of moral turpitude and violated all norms of ethics and morality. His above act has not only tarnished the image of police department in the society but also rudely shaken the faith of the citizens in the entire police force. By Lowering the image and goodwill of uniformed organization which is not acceptable from a police officer whose prime duty/responsibility is to safeguard the spirit of the law. He has acted in the most reprehensible manner, which is unexpected from the member of the disciplined force. His act has put a blot on the police force. Corruption is eating into the vitals of our society and if the guardians of law themselves indulge in such nefarious activities in flagrant violation of decent behavior, it becomes all the more important to check them forth.12 OA No. 737/2020
Item No. 7/C-II Therefore, continuance in the police force of such policeman who indulged in such a grave misconduct and reprehensible activities would be highly objectionable and hazardous for public interest.
The act and conduct of the appellant Const. Samit Kumar, No. 1543/RD warrants his dismissal from the service under Article 311(2)(b) of the Constitution of India at the first instance without following the procedure of regular departmental proceedings, although the purpose for fact finding is really not needed as case FIR No.223/18 dated 10.05.2018 u/s 7/8/13 (1)(d) POC Act & 341/342/120-B, IPC PS Bhalswa Dairy, Delhi makes the sequence of events and corruption act of the appellant Const. Samit Kumar, No. 1543/RD crystal clear. Besides, holding of the departmental proceedings will not be practicable due to intimidation, inducement, affiliation of material witnesses by the appellant.
In order to send a clear message to such undesirable person and to prevent the recurrence of such an incident, it has become necessary to dismiss the appellant Const. Samit Kumar, No. 1543/RD from service. Assessing totality of the facts and circumstances of the case as mentioned above, the Disciplinary Authority was of the firm view that the act of the appellant attracts the provisions of Article 311(2)(b) of the Constitution of India and makes him completely unfit for Police Service. The misconduct on the part the appellant was of such a grave nature that his further retention in the police service would be disastrous for the force and any leniency to him would send a wrong message to the other police officials who are performing their duties with honesty and sincerity.
In view of above, the Disciplinary Authority after taking into consideration all the facts and circumstances of the case, awarded the punishment of "Dismissal from Service" to the appellant under Article 311(2) (b) of the Constitution of India vide order under appeal.
The appellant Ex. Const. Samit Kumar, No. 1543/RD submitted the instant appeal before the appellate authority against the punishment order of the disciplinary authority.13 OA No. 737/2020
Item No. 7/C-II The main pleas put-forth by the appellant are that Disciplinary Authority in the dismissal order has not assigned even a single ground due to which the disciplinary proceedings could not have been conducted smoothly. There was no Departmental Enquiry in existence when dismissal order was passed by the disciplinary authority and straightaway jumped to the conclusion that the appellant is not fit to be retained in the police force. He added that the entire dismissal order does not speak of the reasons why disciplinary authority has invoked clause (b) of second proviso of Article 311 of the Constitution. He added that there is no mention in the dismissal order about the concurrence of the Spl. CP/Admn.
The appellant Ex. Const. Samit Kumar, No. 1543/RD appeared in person before the appellate authority and requested for taking decision in his appeal.
I have further gone through the facts and circumstances of the case as per record available in the concerned file. It has been revealed that the appellant Ex. Const. Samit Kumar, No. 1543/RD had apprehended one person namely Dy Changki Anal with 50 gram of Narcotics Drug (Smack) and took him in the rented House of his friend Dinesh i.e. Gali No. 16, E-Block, swami Shardhnand Colony, Delhi. The appellant and his friend were trying to extort Rs. 70,000/- from Dy Changki Anal on the pretext of avoiding the registration of FIR. Subsequently, a case FIR No. 223/18, dated 10.05.2018 u/s 7/8/13 (1) (d) POC Act & 341/342/120-B, IPC PS Bhalswa Dairy was registered and the appellant was arrested by the local police. This episode is enough to prove the misconduct as well › as involvement in criminal as well as corrupt activities of the appellant. In the written appeal, several Court orders and circulars have been quoted by the appellant which are irrelevant with instant matter as every case has its own merit.
Moreover, this type of misconduct has put the entire police force to shame and such misconduct cannot be tolerated in any disciplined organization like police whose basic duty is to protect the life of the citizen in the society. It is expected from a police official to protect the public and not to break the law but the appellant had indulged himself in unlawful and criminal activity. This makes one believe that the 14 OA No. 737/2020 Item No. 7/C-II appellant does not deserve any leniency at this stage. After taking into consideration the gravity of the misconduct/offence committed by the appellant, the Disciplinary Authority has rightly taken action by invoking Article 311 (2) (b) after obtaining necessary approval of the competent authority as such the appellant does not deserve any opportunity after this type of criminal act.
After considering all the facts and circumstances of the case mentioned above, I Manish Kumar Agrawal, Joint Commissioner of Police Northern Range agree with the observation of Disciplinary Authority made in the punishment order and find no merit in the appeal filed by the appellant. Therefore, the appeal of the appellant is hereby rejected.
The appellant to be informed accordingly."
15. We have perused the pleadings available on record and considered the submissions made by the learned counsels for the parties and have also gone through the Orders/Judgments referred to and relied upon by the learned counsels for the respective parties carefully.
16. 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 Police Force. The applicant has acted in a manner which is highly unbecoming of a Police Officer. 15 OA No. 737/2020 Item No. 7/C-II 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.
17. 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 16 OA No. 737/2020 Item No. 7/C-II 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 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.
18. 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. 17 OA No. 737/2020 Item No. 7/C-II 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.
19. 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 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 18 OA No. 737/2020 Item No. 7/C-II Authority is being passed invoking Article 311 (2) (b) of the Constitution of India. There are circulars, judgment of judicial forums which clearly states that if the allegations are grave then more opportunity should be provided to the delinquent official to put forward his defense. The applicant has not been subjected to a departmental enquiry and merely on assumptions the disciplinary authority adopting a short cut and has invoked the power under Article 311 (2) (b) of the Constitution of India. The reasoning recorded by Disciplinary Authority is based on suspicion and surmises. There is no occasion for the disciplinary authority to record that in the present case departmental enquiry is not reasonably practicable. The usage of expression like "Besides, holding of the departmental proceedings will not be practicable due to intimation, inducement, affiliation of material witnesses by the accused Constable" itself shows that the reasoning is based on suspicion and surmises. The reasoning recorded by Disciplinary Authority for dispensing away the departmental enquiry has been dealt by this Tribunal in various OAs qua the same department i.e. Delhi Police. It is observed that most of witnesses are official witness in criminal case; once the criminal trial and preliminary enquiry are possible, then departmental enquiry is also possible. There is no material in the hand of Disciplinary Authority while passing the impugned order which could even suggest that witness or complainant will not come in departmental enquiry. 19 OA No. 737/2020 Item No. 7/C-II There is no clear and robust evidence in front of respondent authority that the applicant has made any attempt to influence any witness thus making the order of disciplinary authority as bad in law.
20. 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.
21. 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 20 OA No. 737/2020 Item No. 7/C-II 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. It is not known as to why DE which was ordered in this case was not conducted and respondents suddenly decided to invoke provisions of Article 311 (2 (b) of the Constitution of India.
22. 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 21 OA No. 737/2020 Item No. 7/C-II 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.
23. 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 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.
24. The decision of the Disciplinary Authority 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 22 OA No. 737/2020 Item No. 7/C-II 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.
25. 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 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. 23 OA No. 737/2020 Item No. 7/C-II
26. 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.
24OA No. 737/2020 Item No. 7/C-II
27. The applicant preferred an appeal against the punishment order of dismissal dated 11.05.2018 (Annexure-A/1). The Appellate Authority rejected the appeal on 04.02.2020 (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 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.
28. We place reliance on the following judgements/orders:-
(i) 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 25 OA No. 737/2020 Item No. 7/C-II 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.
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 26 OA No. 737/2020 Item No. 7/C-II proceedings against the applicant in accordance with the law.
12. However, in the facts and circumstances, there shall be no order as to costs."
(ii) 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 unfair trial and a fair appeal. We are also conscious of the general principle that pre- decisional hearing is better and should 27 OA No. 737/2020 Item No. 7/C-II 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."
(iii) 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:- 28 OA No. 737/2020
Item No. 7/C-II "20. In the present case, as apparent from the reasons recorded by the respondents in the impugned order, it is apparent that the respondents have arrived at the conclusion for dispensing with the regular inquiry due to the involvement of the applicants in a grave and serious case. The respondents have jumped to the conclusion that on account of serious allegations, the applicants have become ineligible to be continued in police force. There is no finding that the 24 applicants and/or anybody on their behalf have at any point of time even attempted to influence or coerce any of the witness. Even there is no finding that the applicants in the captioned OAs who are very junior officers under the respondents were in a position to influence the witnesses who are generally senior officials working in the Government of India and particularly in CBI. It is also nowhere recorded by the respondents as to how if not only preliminary inquiry was found possible, but also the criminal trial is possible in the said case FIR with the support of more than nineteen witnesses and at no point of time the prosecution has even felt that those witnesses are not likely to turn up and regular inquiry was not possible in the matter. It is undisputed that regular inquiry is a Rule whereas dispensing with the same is only an exception. Though the respondents have recorded that if regular inquiry is initiated, the same is liable to take a long time, however, no reason has been given for the same and it is apparent that such reasoning and finding is based on surmises and conjectures.
21. In view of the aforesaid, we find that the impugned orders are not sustainable in the eyes of law.
Accordingly, the OAs are allowed with the following order(s) :- (i) impugned orders dated 10.08.2022 and 25.01.2023 are set aside. The applicants shall be reinstated in service forthwith. (ii) the applicants shall be entitled for all consequential benefits in accordance with relevant rules and instructions on the subject. (iii) the aforesaid directions shall be complied with by the respondents as expeditiously as possible and preferably within a period of eight weeks from the date of receipt of a copy of this order. (iv) the respondents shall be at liberty to initiate disciplinary proceedings against the applicants if they are so advised, of course in accordance with rules and instructions on the subject.
29OA No. 737/2020 Item No. 7/C-II
22. However, in the facts and circumstances of the case, there shall be no order as to costs."
(iv) 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 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.30 OA No. 737/2020
Item No. 7/C-II
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."
(v) 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 31 OA No. 737/2020 Item No. 7/C-II punishment of dismissal ought to be imposed upon him so as to send a clear message to undesirable persons and to prevent reoccurrence of such crimes. In the light of the aforesaid, we find absolutely no reason to differ with the conclusion arrived at by the learned Tribunal that the dismissal order passed by the petitioners did not contain any justifiable reason whatsoever for dispensing with the enquiry. What clearly emerges is that the petitioners have proceeded on the premise that such police officers, who are charged with serious misconduct, should be immediately dismissed from service. This approach, in our view to dispense with an enquiry, would not meet the parameters laid down under Article 311(2) (b) of the Constitution of India.
11. At the cost of repetition, we may reiterate that merely because the respondent was a police personnel, would not entitle the petitioners to give a complete go- bye to the requirement of holding a departmental enquiry against him without recording any justifiable reasons as to why departmental enquiry could not be held against him.
12. For the aforesaid reasons, we find no infirmity with the impugned order. The writ petition, being meritless, is along with accompanying application, dismissed."
(vi) 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.
29. 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:-
32OA No. 737/2020
Item No. 7/C-II "9. A bare perusal of the aforesaid reasons contained in the dismissal order makes it clear that the primary reason for the petitioners not holding any enquiry against the respondent was their presumption that the respondent would threaten or intimidate the complainant and other witnesses. The petitioners were further of the view that a prolonged enquiry would cause more trauma to the complainant. It is also evident from the dismissal order that the petitioners had, on the basis of the evidence led in the preliminary enquiry, already made up their mind that the respondent was guilty of serious misconduct and had lowered the image of the police force in the eyes of the public.
10. In our considered view, even though the charges against the respondent are very serious and the interest of the complainant deserves to be protected, it does not imply that the principles of natural justice as also the provisions of section 11 of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 should be given a complete go by on the basis of mere presumptions.
Only because the respondent is a police personnel, would in our view, not be a ground either to presume that the witnesses will not come forward to depose against him in a regular enquiry or to hold him guilty without conducting the statutorily prescribed departmental enquiry and that too in a matter like the present where the complainant and the witnesses are also police personnel. In fact, what emerges is that on the basis of the report of the preliminary enquiry itself, the petitioners presumed that the respondent was guilty of serious misconduct and therefore deserved to be dismissed at the earliest. This in our considered view, as has been rightly held by the learned Tribunal, could not be treated as a ground to reach a conclusion that it was not reasonably practicable to hold an enquiry against the respondent. This course of action, in our considered opinion, was clearly violative of Article 311(2)(b) of the Constitution of India.
11. No doubt, the respondent is a police personnel and any misconduct on his part is liable to be dealt with appropriately. This, however, does not imply that the petitioners could, on the basis of the gravity of the charges levelled against him, dispense with the 33 OA No. 737/2020 Item No. 7/C-II 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.
30. 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. 34 OA No. 737/2020 Item No. 7/C-II Justice Saurabh Banerjee, High Court Delhi in W.P.(C) No.5562/2024, CAV 181/2024, CM Appl.22929/2024 -
Stay, CM Appl. 22930/2024 - Ex./LLOD titled Commissioner of Police & Ors. Vs. Sant Ram as well as opinion of Ms. Aishwarya Bhati, Ld. Addl. Solicitor General of India that "this is not a fit case for filing of SLP", the order of the disciplinary authority passed vide No.1833-1900/HAP/PTC (P-II) dated 01.08.2017 vide which Const. (Exe.) Sant Ram, No.324PTC (PIS No.28060573) was dismissed from the Delhi Police force under Article311(2(b) of Constitution of India deciding his suspension period as period not spent on duty and the order passed by the Appellate Authority vide No.106-66/SO/Jt.C.P/Trg, dated 03.11.2017 rejecting his appeal, are set aside. Accordingly, Const. (Exe.) Sant Ram, No.324/PTC (PIS No.28060573) is hereby re- instated in service from dismissal with immediate effect without prejudice to the further departmental action to be taken against him in accordance with the law. 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.
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 35 OA No. 737/2020 Item No. 7/C-II To The Deputy Commissioner of Police, All District including Units, New Delhi.
Sub: W.P. (C) No. 1258/2023 & CM Appl. No. 4759/2023 in the matter of Commissioner of Police, Delhi vs. Manjeet.
Memo Enclosed please find here with a copy of letter No. 10264/W/DHC/ Writs/D-9/2023 dated 26.04.2024 received from the Registrar General, Delhi High Court alongwith copy of the order dated 22.04.2024 wherein the Hon'ble has observed that " in large number of petitions filed by the Commissioner of Police which are coming up before the this Court, we are finding termination orders are being passed b y the petitioners by dispensing with departmental enquiries in a most mechanical manner without recording any valid reasons. We, therefore, direct that a copy of this order be placed before the Commissioner of Police, Delhi to ensure that in future, enquiries are not dispensed with without assigning justifiable reasons.
It is, therefore, requested that the aforementioned directions of the Hon'ble High Court of Delhi shall be taken into consideration before passing termination orders by dispensing with the departmental enquiries in future.
This issues with the approval of Commissioner of Police, Delhi.
(Hareesh H.P) Deputy Commissioner of Police Legal Division/ PHQ, Delhi"36 OA No. 737/2020
Item No. 7/C-II 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 37 OA No. 737/2020 Item No. 7/C-II 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 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""
31. 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 38 OA No. 737/2020 Item No. 7/C-II 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."
32. Recently, the Hon‟ble High Court of Delhi in the matter of GNCTD & Ors. Vs. Amar Singh Chauhan decided on 20.09.2024 recorded the following order:-
"1. Learned counsel for the petitioner, on instructions, submits that in view of judgment dated 14.08.2024 passed by this Court in W.P. (C) 11276/2024 titled as The Commissioner of Police & Ors. vs OM Prakash & anr., petitioners may be allowed to withdraw the present petition.
2. Accordingly, the present petition is dismissed as withdrawn.
3. Petitioners are directed to examine all such petitions pending before this Court which are falling under similar 39 OA No. 737/2020 Item No. 7/C-II circumstances and to file application to withdraw the said petitions, if they consider it necessary."
33. Having regard to the above, we are of the considered view that impugned orders passed by the respondents are not only in violation of the settled law but also of their own circulars dated 11.09.2007 and 13.05.2024. The reasons given by the respondents for dispensing away with the enquiry are not in consonance with the law settled by the Hon‟ble Supreme Court and Hon‟ble High Court(s) and followed by this Tribunal in a catena of cases, a few of which are referred to hereinabove.
34. 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 11.05.2018 (Annexure-A/1) of the Disciplinary Authority and dated 04.02.2020 (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 40 OA No. 737/2020 Item No. 7/C-II
(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.
(Rajinder Kashyap) (R.N. Singh)
Member (A) Member (J)
/neetu/