Central Administrative Tribunal - Delhi
Rajeev Kumar vs Comm. Of Police on 3 September, 2024
1 OA No.104 /2020 Court No.2 (item No.31) Central Administrative Tribunal Principal Bench OA No.104/ 2020 Reserved on:06.08.2024 Pronounced on: 03.09.2024 Hon'ble Mr.R.N. Singh,Member (J) Hon'ble Mr. Rajinder Kashyap, Member (A) Rajeev Kumar, Age-55 years, Post -H.Constable Group-C Sub: Dismissal from service S/o Sh. Gurcharan Dass R/o -S-117, School Block, 1st Floor, Shakar Pur, Delhi
-Applicant (By Advocate: Shri Sachin Chauhan with Ms. Ridhi Dua, Sh. Abhimanyu Baliyan and Sh. Himanshu Raghav) VERSUS
1. Govt. of NCT of Delhi through the Chief Secretary, Govt. of NCTD, A-Wing, 5th Floor, Delhi Secretariat, New Delhi-110113
2. The Commissioner of Police Police Headquarters,MSO Building I.P. Estate New Delhi
3. The Additional Commissioner of Police Operations: Delhi, Through the Commissioner of Police, Police Headquarters, MSO Building I.P. Estate, New Delhi.
4. The Deputy Commissioner of Police Ops.& Comn.: Delhi through the Commissioner of Police Police Headquarters, MSO Building, I.P. Estate, New Delhi.
-Respondents (Through Advocate: Mr. S.N. Verma) 2 OA No.104 /2020 Court No.2 (item No.31) By Hon'ble Mr. Rajinder Kashyap, Member (A):-
The applicant has filed present Original Application under Section 19 of the Administrative Tribunals Act, seeking the following relief(s):-
"To set aside the impugned order dated 20.12.2017 whereby the extreme punishment i.e. dismissal from service is being imposed and order dated 31.08.2019 whereby the statutory appeal of the applicant has been rejected and to further direct the respondents to reinstate the applicant in service with all consequential benefits including seniority and promotion and pay and allowances.
or/and
ii) Any other relief which this Hon'ble Court deems fit and proper may also awarded to the applicant"
2. Pursuant to the notices, the respondents have filed their counter affidavit opposing the claim of the applicant and have prayed for dismissal of the present Original Application. The applicant has also filed his rejoinder denying the contentions of the counter affidavit and reiterated his claim in the OA.
3. The brief facts of the case are that in the year 1989, the applicant was appointed as H.C. (AWO) in Delhi Police. The applicant alleges that he was falsely implicated in a criminal case FIR No. 18/17 u/s 3 OA No.104 /2020 Court No.2 (item No.31) 376/363/328/506 IPC and 6 POSCO Act at Kalyanpuri Police Station in Delhi. The applicant was arrested and sent to judicial custody on 18.01.2017. He was also placed under suspension on the same date i.e. 18.01.2017. The applicant remained in judicial custody from 18.01.2017 to 09.05.2018. He was granted Bail by the Hon'ble High Court on 09.05.2018. A Departmental Enquiry (DE) was initiated against the applicant, however, suddenly he was dismissed from service vide impugned order dated 20.12.2017 relying upon the provision stipulated in Article 311 (2) (b) of the Constitution of India. The applicant contends that the reasons recorded by Disciplinary Authority for dispensing away with the Departmental Enquiry are vague and based on suspicion and surmises.
4. The reasons recorded by the Disciplinary Authority while issuing punishment order of dismissal on 20.12.2017 are as follows:-
"that HC (AWO) Rajeev Kumar, NO.1492/comm. (PIS NO.27890154), while posted at Central Distt. Control Room, on 18.01.2017 at 00.05 AM, a PCR Call was received vide DD No.3- A at PS Kalyanpuri, East Distt., Delhi. The said call was marked to W/SI Suman Lata Kushwaha, No.D-5683 of PS Kalyanpuri, Delhi. She reached at G-6, 1 floor, 4 OA No.104 /2020 Court No.2 (item No.31) East Vinod Nagar, Delhi, where complainant Rabiya Dio Aljaz Rana aged about 17 years and her mother Shahana Parveen were present at their residence. The complainant was asked about the incident, in which she stated that she was raped by her uncle Rajeev Chauhan on 06.01.2017 after giving her some sedative in coffee at his residence. The complainant produced a written complaint to the Inquiry Officer. The complainant, alongwith her mother, was taken to the LBS Hospital, Khichripur, Delhi where she was counseled by the counselor. Thereafter, the victim was medically examined. After medical examination, case FIR No. 18/17 dated 18.01.2017 w/s 376/363/328/306 IPC & 6 POCSO Act, P.S. Kalyanpuri, Delhi was registered against H.C. (AWO) Rajiv Kumar, No. 1492/Comn, and investigation of the said case was conducted by W/SI Suman Lata Kushwaha, No.D-5683 of P.S. Kalyanpuri, Delhi. On 18.01.2017, the accused Rajiv Kumar S/o Sh Gurcharan Dass R/o S-117, School Block, 1" floor, Shakar Pur Delhi was arrested. The CDR of Mobile Phone of the accused has been obtained which shows that there were regular calls between the accused and the victim. After completion of investigation the charge sheet of the above said case has been submitted in the Hon'ble Court H.C. (AWO) Rajeev Kumar, No.1492/Comn. was placed under suspension w.e.f. 18.01.2017 vide this office order No.161- 211/HAP (P- II)/Ops. & Comn dated 18.01.17 and a parallel DE against him has also been initiate vide this office order NO.1563- 93/HAP(P-I)/Ops. & Comn. dated 29.8.17.
Besides above, H.C. (AWO) Rajeev Kumar, No. 1492/Comn. was placed under suspension 5 OA No.104 /2020 Court No.2 (item No.31) w.e.f. 18.01.2017 vide this office order NO.161-211/HAP(P-II)/ Ops & Comn dated 18.01.17 and a parallel DE against him has also been initiated vide this office order No.1563-93/HAP(P-I)/Ops & Comn, dated 29.8.17.
Besides above. H.C. (AWO) Rajeev Kumar, No. 1492/Comn. has indulged himself in multiple cases of cheating, molestation and Rape, clearly pointing to his 'Moral Turpitude". In the first, he cheated number of people in the name of providing jobs aboard and cheated them. Although the DE has been filed by the Disciplinary Authority previously on the ground that he has been discharged by the court in 2012 in case FIR No.83/05 u/s 420/406/468/471/120B IPC PS Vasant Vihar, Delhi. However, the impugned order was challenged and was set aside by the Court of ASJ Sh. Vinod Kumar Yadav, with the direction to look into the matter on the aspect of framing of charges.
In second instance, a case of molestation of FIR No.245/11 dated 14.09.11 u/s 354/509 IPC PS Madhu Vihar, Delhi was registered against H.C.(AWO) Rajeev Kumar, No. 1492/Comn.. A Parallel DE was also initiated against him vide this office order no.68- 107/HAP(P-I)/comn. dated 07.01.2013 in which he was removed from service vide this office order No.857-927/HAP (P-I)/Comn. dated 17.04.14. However, in an appeal he was reinstated in service with punishment of forfeiture of one year approved service permanently by the appellate authority vide order NO.68- 70/P.Sec.Addl. C.p/Ops., dated 12.01.2015. The following facts are important:-
1. H.C.(AWO) Rajeev Kumar, No. 1492/Comn.
was constantly in touch with the 6 OA No.104 /2020 Court No.2 (item No.31) women/complainant. On the day of incident also he was in touch with her
2. Const. Amrik Singh, who was on duty at the place of incident, responded to the complainant who shouted for help. He saw one person running away from the place, who was doing wrong things with the women. The call records, shows that the location of victim and H.C. (AWO) Rajeev Kumar, No. 1492/Comn. was at the same place 3. In the third instance H.C.(AWO) Rajeev Kumar, No. 1492/Comn.
has been accused of rape vide FIR NO. 18/17 /x376/363/328/506 IPC & 6 POCSO Act PS Kalyan Puri. He was arrested on 18.01.2017 and is still running in judicial custody. He was caught red handed in the house of victim, who happen to be a minor.
Although a DE has been ordered in this matter but proceedings cannot be carried out, since he is still in judicial custody. However, I am of this view that no purpose will be served in continuing with a DE in this case. H.C.(AWO) Rajeev Kumar, No. 1492/Comn. is habitual offender. His moral turpitude cannot be tolerated in a civilized society. His conduct is un-pardonable. Even if it is considered for the sake of argument that the relationship was mutual, still he is guilty, as the victim in question is a minor. His misconduct is not only of driving pecuniary benefits from cheating but also of serious moral turpitude which cannot be tolerated. His continuation in police service will set bad precedent in the force.
The misconduct of H.C.(AWO) Rajeev Kumar, No. 1492/Comn. has put the entire police force to shame. Such misconduct can not be tolerated in any disciplined organization like police whose basic duty is to protect the life of 7 OA No.104 /2020 Court No.2 (item No.31) citizen in the society. He has eroded faith of common men in the police force, hence his continuation in the Police organization will further cause irreparable loss to the functioning and credibility of Delhi Police. He is involved in the criminal case of almost similar nature and the circumstances indicate that such type of persons should not be allowed to continue in Delhi Police which is to work against criminals. His frequent involvements in criminal cases clearly show his criminality and indulgence in unwarranted activities which is not in the public interest. Further continuance of such criminal minded person in the force may be detrimental to public interest. Keeping such persons in Police Department will only encourage his criminal propensities to misuse his position.
Taking into account the holistic facts and circumstances of the case as mentioned above, the undersigned is of the firm opinion and satisfied that the acts and grave misconducts of accused H.C.(AWO) Rajeev Kumar, No. 1492/Comn. attract the provisions of Article 311(2) (b) of the Constitution of India and make him completely unfit for police service."
5. The applicant made an appeal dated 03.07.2018. The Appellate Authority passed an order on 31.08.2019 upholding the order of Disciplinary Authority.
6. The applicant states that the reasons recorded by the disciplinary authority for dispensing away with the 8 OA No.104 /2020 Court No.2 (item No.31) Departmental Enquiry are absolutely vague and based on suspicion and surmises. He further states that the Disciplinary Authority has resorted to the provisions of Article 311 (2) (b) as a short cut method to impose penalty of dismissal from service on the applicant. He states that the Disciplinary Authority had examined the case of the applicant before initiating regular Departmental Enquiry and was of the considered view that as required under Article 311 of the Constitution of India, regular departmental enquiry is mandatory to take disciplinary action against the applicant. The Disciplinary Authority was satisfied while passing the order of regular departmental enquiry mentioned above that the case of the applicant did not fall in the category of Article 311 (2) (b) of the Constitution of India. He states that Article 311(2) (b) is special provision which applies in particular circumstances/situation and it cannot be used in general manner as has been done by the Disciplinary Authority.
7. The applicant also states that the Disciplinary Authority has abused the power vested in him. He contends that the Disciplinary Authority has assumed 9 OA No.104 /2020 Court No.2 (item No.31) that the allegation levelled against the applicant are proved despite trial being pending in the court of law and ordering departmental enquiry in the matter. The reasons given by the Disciplinary authority to invoke Article 311(2) (b) of the Constitution of India are thus absolutely arbitrary and does not withstand the scrutiny of law, making the impugned order as bad in law. The applicant contends that the Disciplinary Authority failed to acknowledge the fact that if trial under FIR No. 18/17 U/S 376/363/328/506 is possible then the departmental enquiry is also possible. He further states that this was essential in view of contrary statements being given by the witnesses till their deposition in the court of law. He states that Disciplinary Authority coming to the conclusion that the allegations against the applicant almost stand proved as the applicant was in touch with the woman/complainant, is jumping to the conclusion, thus making the case of disciplinary authority bad in law.
8. The applicant contends that the disciplinary authority as well as Appellate authority failed to acknowledge the fact that initially a regular 10 OA No.104 /2020 Court No.2 (item No.31) departmental enquiry was ordered against the applicant, during the pendency of the said enquiry, suddenly order of dismissal under Article 311 (2) (b) of the Constitution of India has been issued by the Disciplinary Authority.
9. The respondents have filed their reply on 16.03.2020. In their reply, the respondents are of the view that the OA is not tenable and the action taken by the respondents is just and legal, therefore, the relief sought by the applicant shall not be accorded. The respondents in their reply state that the grounds taken by the applicant in his appeal were not convincing, reasonable opportunity was given to the applicant to defend his case. He was even allowed to file supplementary appeal on 03.07.2018 and the same was also considered by the Appellate Authority. He was again called in O.R. on 10.07.2018 and heard. The Appellate Authority asked some information i.e. status of the case through Pairvi Officer from concerned court. The Pairvi Officer of this Unit had submitted his report which was sent to PHQ on 16.07.2018. On perusal of the report, the applicant was again called in O.R. on 03.08.2018. Accordingly, he appeared before the 11 OA No.104 /2020 Court No.2 (item No.31) Appellate Authority in the OR and reiterated that the Court has asked to put pending FSL report on next date of hearing in the instant case. The Pairvi Officer had attended the court of ASJ-01/Spl. Judge (POCSO) in the above case FIR and case was pending trial. The applicant was again called in O.R. on 07.09.2018 but he did not appear as he was not found at his home. After that on different dates he was called in O.R. thrice. At last the applicant appeared in O.R. on 26.08.2019 and final order of appeal was issued on 30.08.2019. Therefore, the plea taken by the applicant, is not tenable.
10. Rejoinder has been filed by the applicant wherein he has stated that the averments made in the reply filed by the respondents are vague and evasive. He states that the Disciplinary Authority has moved on presumption that the allegation levelled against the applicant stands proved. The report dated 19.1.2017 of the DCP East Delhi was never given to the applicant nor the applicant was part of such enquiry. He states that once the P.E. can be conducted in respect of the allegation made in FIR No-18/2017, then a D.E. is also possible. He states that the reasons recorded by the 12 OA No.104 /2020 Court No.2 (item No.31) Disciplinary Authority for dispensing with the D.E. are absolutely vague and based on suspicion and surmises. The Disciplinary Authority has resorted to Article 311(2) (b) of the Constitution of India only as a short cut method to impose the penalty of dismissal from service with a presumption that the offence has been committed by the applicant. The reasons that the applicant is in judicial custody is not at all good ground to invoke the power under Article 311 (2) (b) of the Constitution of India. He states that it is a matter of record that at the time when the statutory appeal of the applicant was dealt by the Appellate Authority, the applicant was out on bail but still the Appellate Authority has not applied its mind on the same fact and the applicant being in judicial custody cannot be a ground to deprive the applicant of the protection given under Article 311 the of Constitution of India. The Disciplinary Authority recording that the D.E. will not serve any purpose as the applicant is a habitual offender, clearly establishes that the present case is a clear case of abuse of power under Article 311 of the Constitution of India. He states that the Disciplinary Authority is assuming that the allegation levelled against the applicant are proved despite the trial in the 13 OA No.104 /2020 Court No.2 (item No.31) aforesaid FIR still under process and no D.E. being conducted. Article 311(2) (b) does not give power to the Disciplinary Authority to invoke the power under Article 311(2) (b) if the evidence against the delinquent official is unrebutted or the allegation against the delinquent official are grave in nature. He states that the reasoning given by the Disciplinary Authority to invoke the power under Article 311(2) (b) is thus absolutely arbitrary and does not withstand the scrutiny of law, thus making the impugned order as bad in law.
11. At the time of hearing, the learned counsel for the applicant has argued that the impugned order passed by the Disciplinary and Appellate Authority are being passed without application of mind and in gross violation of the principle of natural justice as laid down in the departmental rules and procedure under garb of Article 311 (2) (b) of the Constitution of India without subjecting the applicant to departmental and enquiry straight way imposing the penalty of dismissal from service on the applicant. The learned counsel for the applicant also submits that admittedly an internal enquiry was conducted within a short span of time i.e. 14 OA No.104 /2020 Court No.2 (item No.31) from the date of registration of the aforesaid FIR on 18.01.2017, was placed under suspension, was arrested and granted Bail on 09.05.2018, the order dated 20.12.2017 dismissal from service was passed by the Disciplinary Authority as the applicant was in judicial custody as he got bail only on 09.05.2018 giving no opportunity to the applicant to explain his position in the matter. The applicant preferred an appeal against the order dated 30.08.2019 of the Disciplinary Authority, however, the Appellate Authority failed to consider the facts his appeal was rejected. He further submitted that the Disciplinary Authority and the Appellate Authority did not make the required and possible effort to move forward in the departmental enquiry, after initiating departmental enquiry or findings of sufficient reasons /material, the Disciplinary Authority can come to the conclusion that departmental enquiry is not reasonably practicable. However, in the present case, only acting on the presumption and surmises and suddenly closing the Departmental Enquiry, the respondents came to the conclusion that the Departmental Enquiry is not practicable and such conclusion /determination of the respondents are not sustainable in the eyes of law. He 15 OA No.104 /2020 Court No.2 (item No.31) submitted that the Disciplinary Authority has failed to apply its minds that the power under the Article 311(2)
(b) of the Constitution of India has to be exercised with a pre-condition. The pre-condition is that a departmental enquiry is not reasonably practicable and to come to such conclusion, the Disciplinary Authority has to record reason (s), and reasoning in the case in hand is on basis of assumption, suspicion, surmises, conjectures and guesses. Coming to the conclusion that the applicant has committed the alleged crime without there being conclusive verdict of the learned court in the aforesaid case FIR.
12. The applicant has placed reliance on the judgment of this Tribunal on the use of Article 311(2) (b) of the Constitution of India in the matter of Dushyant Kumar CAT- OA/1019/2023, HC -W.P. (C) No. 2407/2024, Deepak CAT- OA/542/2023 with OA/591/2023, Manjeet HC- W.P. (C ) - 1258/2023, Jagmal Singh HC- W.P. (c)- 4201/2024, Supreme Court- SLP NO.- 11681/2024, Sant Ram- HC- W.P. (C)- 5562/2024 Re-instatement order 16.07.2024 and Circular Dated 13.05.2024 issued by DCP Legal Division/PHQDelhi.
16OA No.104 /2020 Court No.2 (item No.31)
13. The respondent authorities has imposed penalty on the applicant on the presumption that alleged offence has been committed by the applicant, therefore, there is no need to conduct the departmental enquiry and they have closed the Departmental Enquiry ordered against the applicant, such reasons cannot withstand the rigour of scrutiny of law for invoking the power under provision of Article 311 (2) (b) of the Constitution of India. The reasons recorded in the impugned order are mentioned only to avoid the Departmental Enquiry against the applicant and following any easy way to get rid of applicant from Government service by invoking provisions of Article 311 (2) (b) of the Constitution of India.
14. It is clear from the appellate order that Appellate Authority had rejected the appeal in a mechanical manner without addressing specific submissions of the applicant merely on presumptions that the allegation against the applicant is presumed to be proved and the witness might not come forward to depose against the applicant. The Appellate Authority is simply assuming that the allegations against the applicant stands proved and this justification is good enough to 17 OA No.104 /2020 Court No.2 (item No.31) invoke the powers under Article 311 (2) (b) of the Constitution of India to dismiss the applicant. In the present case, the Appellate Authority did not explore that majority of the witnesses are official witnesses. If an internal 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, infact they have closed the Departmental Enquiry ordered against the applicant they resorted to invocation of provision of Article 311 (2) (b) of the Constitution of India to impose the penalty of dismissal. In this case Departmental Enquiry had already been initiated against the applicant but was suddenly dropped. This could be construed as strong bias of respondents against the applicant and their disdain to uphold Rule of Law.
15. Coming to the conclusion only on presumptions and assumptions without any material that the witnesses / complaints would not come forward to depose against the applicant, the Appellate Authority has decided and rejected the possibility of conducting a 18 OA No.104 /2020 Court No.2 (item No.31) Departmental enquiry and has issued punishment order of dismissal by invoking Article 311 (2) (b) of the Constitution of India and has also rejected the appeal, which could be construed as bad in law.
16. The respondents being senior police Officer holding high position in the higher and middle level administration of police Department are required to run the administrative decision making in a fair, impartial and lawful manner. The manner in which this case has been handled speaks volumes on the internal inconsistence in handling the disciplinary and vigilance affairs within the police department of Delhi. A serious course correction is needed. Leaving this argument here for pondering of competent authority, we proceed further.
17. 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 passed. 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 19 OA No.104 /2020 Court No.2 (item No.31) order of Disciplinary Authority as the same being bad in law as being based on assumptions, suspicion and surmises. Further, the Disciplinary Authority is assuming that the offence has been committed by the applicant. Under this assumption, the present order of Disciplinary Authority is being passed invoking Article 311(2) (b) of the Constitution of India. There are circulars, judgment of judicial forums which clearly states that if the allegations are grave then more opportunity should be provided to the delinquent official to put forward his defense. The applicant has not been subjected to a departmental enquiry and merely on assumptions, the disciplinary authority adopting a short cut and has invoked the power under Article 311(2)(b). 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 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 20 OA No.104 /2020 Court No.2 (item No.31) 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. There is no clear and robust evidence in front of respondent authorities that the applicant has made any attempt to influence any witness thus making the order of disciplinary authority as bad in law In fact, in this case the Departmental Enquiry initiated against the applicant was stopped.
18. The applicant is Head Constable in Delhi Police. It is a lower rank among the subordinate officer thus it is' absolutely wrong to record that applicant is in any position to influence or threaten any witness. There is no admissible material or evidence before the respondent authorities to conclude that the witness is threatened or intimidated or will not depose in departmental enquiry, hence the reason recorded for dispensing the D.E. under Article 311 (2) (b) of the Constitution of India are not tenable. Most of the witnesses in present case are official witnesses. As stated above, the applicant is only Head Constable in 21 OA No.104 /2020 Court No.2 (item No.31) 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 the Departmental 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 and shortcut method in the present case. There is no material in hand of Disciplinary Authority while passing the impugned order which could even suggest that witness or complainant will not come in D.E. The impugned order is not passed on the gravity of misconduct but only on 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 as the same amounts to abuse of process of law.
19. In the public interest and even as per Rule of law, it was incumbent upon the authorities not to put to use Article 311(2)(b) of the Constitution of India in the present case and give an opportunity to the applicant 22 OA No.104 /2020 Court No.2 (item No.31) to put forward his defence in the departmental enquiry. The gravity of misconduct alleged in the present case cannot be a ground to invoke the power under Article 311(2)(b) of Constitution of India. The applicant as per rule of law must be given opportunity to put forward his defence in regular D.E. until and unless a DE is not reasonably practical. The reasons recorded in present impugned order to dispensing with the DE are just not tenable in the eyes of law. The Hon'ble Tribunal recently qua the same respondents have passed the judgments where by the order of dismissal from service under Art 311(2)(b) of the Constitution of India has been quashed and set aside on the ground that if PE is possible then DE is also possible.
20. The disciplinary authority is not able to apply its mind that the power under Article 311 (2)(b) has to be exercised with a pre-condition. The pre-condition is that a disciplinary enquiry is not reasonably practical and to conclude that, 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 23 OA No.104 /2020 Court No.2 (item No.31) presumption that the act committed by the applicant is so grave that it is practically not feasible to conduct enquiry, hence, closed the initiated Departmental Enquiry came to conclusion that there is no need to conduct the departmental enquiry. The law on the subject is that graver are the allegation then more opportunity should be provided to the delinquent official to submit the defense. The gravity of the charge will never be a imminent factor in deciding whether power under Article 311 (2)(b) of the Constitution of India is to be invoked or not. It is matter of settled law that without conducting any departmental enquiry the finding of guilt against the applicant is enough to vitiate the order of the disciplinary authority.
21. The applicant preferred an appeal against the punishment order of dismissed from services on 18.01.2017. The Appellate Authority rejected the appeal on 31.08.2019, the relevant portion of appellate order reads as under:
"The Disciplinary Authority has observed that the misconduct of the appellant has put the entire police force to shame. Such misconducts cannot be tolerated in any disciplined organization like police whose basic duty is to protect the life of citizen in the society. He has 24 OA No.104 /2020 Court No.2 (item No.31) erode the faith of common men in the police force, hence his continuation in the Police organization would further cause irreparable loss to the functioning and credibility of Delhi Police. He is involved in the criminal cases of almost similar nature and the circumstances indicate that such type of person should not be allowed to continue in Delhi Police which is to work against criminals. His frequent involvements in criminal cases clearly show his criminality and indulgence in unwarranted activities which is not in the public interest. Further continuance of such criminal minded person in the force may be detrimental to public interest. Keeping such persons in Police Department would only encourage his criminal propensities to misuse his position.
Taking into account the holistic facts and circumstances of the case, the Disciplinary Authority was of the firm opinion and satisfied that the act and grave misconduct of accused HC (AWO) Rajeev Kumar, No.1492/Comn. was as such that attract the provisions of Article 311 (2) (b) of the Constitution of India and make him completely unfit for police service.
Keeping in view of the facts of the case and overall implication of sucha misconduct for disciplined force and sensitivity of the matter the appellant was dismissed from service under Article 311(2) (b) of the Constitution of India vide order No. 3537/HAP /P-I/Ops. & Comn. dated 20.12.2017. His suspension period from 18.01.2017 to the date of issue of dismissal order was decided as period "Not Spent on Duty for all intents and purposes. Hence, this appeal.
Following the appeal, I heard the appellant in O.R. on 26.08.2019. During OR, he has added nothing new what-so-ever he has already 25 OA No.104 /2020 Court No.2 (item No.31) reiterated in his appeal. I have carefully gone through the submissions of the appellant, but the ground taken by the appellant in his appeal are not convincing. The examination of charge sheet annexed by the appellant with his appeal revealed that the prosecutrixindict the act of the appellant during her statement under section 164 Cr.P.C.
Keeping in view the above discussion, I find no merit in this case to interfere with the order of the Disciplinary Authority. Therefore, the appeal filed by the appellant is hereby rejected being devoid of merit and substance.
Let the appellant be informed accordingly."
22. The appeal of the applicant was rejected 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 tiltating factor in deciding whether a Departmental Enquiry is a reasonably practicable or not. The more graver the charge the opportunity to defend himself should be more.
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23. The applicant has placed reliance on the order dated 13.12.2023 passed by this Tribunal in OA No. 1019/2023 in the case of Dushyant Kumar Vs. Govt. of NCT of Delhi & Ors. The relevant portion of the order is reproduced below:-
"8. A catena of cases of the Orders/Judgments of the Hon'ble Supreme Court, Hon'ble High Court of Delhi and of this Tribunal on the issue as involved in the present case were also considered by the Division Bench (consisting one of us) while deciding the case of Ct. Sumit Sharma (supra).
9. Having regard to the above, we have carefully perused the impugned order(s), we find that nothing has been recorded in the impugned order(s) or shown to us that the applicant had ever threatened or harassed any of the witness(es) and/or the prospective witness(es). From the impugned orders, it is also evident that neither any effort was made by them to conduct an enquiry, nor there is any evidence that despite their best efforts, the respondents would not have been able to produce the witness(es) to lead evidence against the applicant. Further 18 OA No.1019/2023 nothing is brought on record that witness(es) has/have been threatened by the applicant or they were too scared of the applicant to come forward in the regular enquiry proceedings. It is also found that the disciplinary authority while passing the impugned order has very casually come to the conclusion that it would not be possible to conduct the departmental enquiry against the applicant, as no reason at all has been recorded in this regard and the applicant is guilty of committing grave misconduct and was involved in the aforesaid offences.
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 27 OA No.104 /2020 Court No.2 (item No.31) 11.9.2007. The reasons given by the respondents for dispensing with the enquiry are not in consonance with the law settled by the Hon'ble Supreme Court and Hon'ble High Courts and followed by this Tribunal in a catena of cases, including in one referred to hereinabove.
11. In view of the aforesaid facts and circumstances of the present case, we are of the considered view that the instant OA is squarely covered by the common 19 OA No.1019/2023 Order/Judgment dated 10.2.2022 in Ct. Sumit Sharma (supra) and a batch of cases. Therefore, the present OA deserves to be partly allowed and hence, the same is partly allowed with the following directions:- (i) Orders dated 03.10.2022 (Annexure A/1) and dated 10.3.2023 (Annexure A/2) passed by the disciplinary and appellate authorities respectively are set aside; (ii) The applicant shall be entitled to all consequential benefits in accordance with the relevant rules and law on the subject; (iii) The respondents shall implement the aforesaid directions within eight weeks of receipt of a copy of this order; and (iv) However, the respondents shall be at liberty to initiate disciplinary proceedings against the applicant in accordance with the law. 12. However, in the facts and circumstances, there shall be no order as to costs."
24. 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 Honble 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 28 OA No.104 /2020 Court No.2 (item No.31) 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 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.29 OA No.104 /2020
Court No.2 (item No.31) 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."
25. In the order dated 16.04.2024 in OA No. 542/2023 with OA 591/2023 passed in case of Deepak vs. Govt.of NCT of Delhi & Ors of this Tribunal. The Tribunal has passed as under:-
" 20. In the present case, as apparent from the reasons recorded by the respondents in the impugned order, it is apparent that the respondents have arrived at the conclusion for dispensing with the regular inquiry due to the involvement of the applicants in a grave and serious case. The respondents have 30 OA No.104 /2020 Court No.2 (item No.31) 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 Item No. 35 & 36 Court-2 OA No. 542/2023 & 591/2023 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. 25 Item No. 35 & 36 Court-2 OA No. 542/2023 & 591/2023.
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 31 OA No.104 /2020 Court No.2 (item No.31) from the date of receipt of a copy of this order.
(iv) the respondents shall be at liberty to initiate disciplinary proceedings against the applicants if they are so advised, of course in accordance with rules and instructions on the subject.
22. However, in the facts and circumstances of the case, there shall be no order as to costs."
26. 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 :-
"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 32 OA No.104 /2020 Court No.2 (item No.31) action is clearly violative of Article 311(2)(b) of the Constitution of India.
10. We have also considered the decision in Dushyant Kumar (Supra) and find that in the said case, this Court had rejected a similar challenge by the petitioners to the Tribunal's quashing of a dismissal order passed after dispensing with the enquiry. In fact, this Court after considering the circulars dated 21.12.1993 and 11.09.2007 issued by the petitioners themselves, observed that despite there being a requirement to record cogent reasons to dispense with the enquiry, the petitioners were passing cryptic orders dispensing with the enquiry in the most mechanical manner.
11. No doubt, the respondent is a police personnel and any misconduct on his part is liable to be dealt with appropriately. This, however, does not imply that the petitioners could, on the basis of the gravity of the charges levelled against him, with an enquiry on absolutely vague grounds. As noted hereinabove, the petitioners have given no reason whatsoever in the impugned order for dispensing with the inquiry. The impugned order of dismissal proceeds on the basis that the respondent's guilt had already been proved in the preliminary enquiry. Furthermore, it is not as if the respondent has been let off without any departmental action being taken against him, as the learned Tribunal has already granted time to the petitioners to initiate departmental proceedings against him as per law.
12. For the aforesaid reasons, we find no reason to interfere with the impugned order. The writ petition being meritless is dismissed along with all applications.
13. Before we conclude, we are constrained to observe that in a large number of petitions filed by the Commissioner of Police which are coming up before this Court, we are finding termination orders are being passed by the petitioners by dispensing with departmental enquiries in a most mechanical manner without recording any valid reasons. We, therefore, direct that a copy of this order be placed 33 OA No.104 /2020 Court No.2 (item No.31) before the Commissioner, Delhi Police to ensure that in future, enquiries are not dispensed with without assigning justifiable reasons."
27. The Hon'ble High Court of Delhi in Writ Petition (C) No.4201/2024 in case of Commissioner of Police and anr. Vs. Jagamal Singh. on 20.03.2024 held as under:-
"10. From a perusal of the aforesaid, we find that the petitioners have proceeded to dispense with the enquiry against the respondent only because of the grave nature of allegations levelled against him and have simply observed that since the respondent had lowered the image of the police department and goodwill of a uniformed organisation, an exemplary punishment of dismissal ought to be imposed upon him so as to send a clear message to undesirable persons and to prevent reoccurrence of such crimes. In the light of the aforesaid, we find absolutely no reason to differ with the conclusion arrived at by the learned Tribunal that the dismissal order passed by the petitioners did not contain any justifiable reason whatsoever for dispensing with the enquiry. What clearly emerges is that the petitioners have proceeded on the premise that such police officers, who are charged with serious misconduct, should be immediately dismissed from service. This approach, in our view to dispense with an enquiry, would not meet the parameters laid down under Article 311(2) (b) of the Constitution of India.
11. At the cost of repetition, we may reiterate that merely because the respondent was a police personnel, would not entitle the petitioners to give a complete go-bye to the requirement of holding a departmental enquiry against him without recording any justifiable reasons as to why departmental enquiry could not be held against him.34 OA No.104 /2020
Court No.2 (item No.31)
12. For the aforesaid reasons, we find no infirmity with the impugned order. The writ petition, being meritless, is along with accompanying application, dismissed."
28. In Petition for Special Leave to Appeal (C) No. 11681/2024 filed by the Commissioner of Police & Anr. Vs. Jagmal Singh, The Hon'ble Apex Court vide its judgment on 10.07.2024 has dismissed the said SLP and the judgment of Hon'ble Court of Delhi attained finality.
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 has held as under:-
"9. A bare perusal of the aforesaid reasons contained in the dismissal order makes it clear that the primary reason for the petitioners not holding any enquiry against the respondent was their presumption that the respondent would threaten or intimidate the complainant and other witnesses. The petitioners were further of the view that a prolonged enquiry would cause more trauma to the complainant. It is also evident from the dismissal order that the petitioners had, on the basis of the evidence led in the preliminary enquiry, already made up their mind that the respondent was guilty of serious misconduct and had lowered the image of the police force in the eyes of the public.35 OA No.104 /2020
Court No.2 (item No.31)
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 W.P.(C) 5562/2024 Page 7 of 8 Workplace (Prevention, Prohibition and Redressal) Act, 2013 should be given a complete go by on the basis of mere presumptions. Only because the respondent is a police personnel, would in our view, not be a ground either to presume that the witnesses will not come forward to depose against him in a regular enquiry or to hold him guilty without conducting the statutorily prescribed departmental enquiry and that too in a matter like the present where the complainant and the witnesses are also police personnel. In fact, what emerges is that on the basis of the report of the preliminary enquiry itself, the petitioners presumed that the respondent was guilty of serious misconduct and therefore deserved to be dismissed at the earliest. This in our considered view, as has been rightly held by the learned Tribunal, could not be treated as a ground to reach a conclusion that it was not reasonably practicable to hold an enquiry against the respondent. This course of action, in our considered opinion, was clearly violative of Article 311(2)(b) of the Constitution of India.
11. No doubt, the respondent is a police personnel and any misconduct on his part is liable to be dealt with appropriately. This, however, does not imply that the petitioners could, on the basis of the gravity of the charges levelled against him, dispense with the requirement of an enquiry on absolutely vague grounds. As noted hereinabove, the petitioners have given no reason whatsoever in the impugned order for dispensing with the inquiry. The impugned order of dismissal proceeds on the basis that the respondent's guilt had already been proved in the preliminary enquiry and had also been admitted by him. We therefore have no hesitation in agreeing with the learned Tribunal that the petitioners have dispensed with the enquiry only on the basis of a perceived notion that the respondent being a police personnel, W.P.(C) 36 OA No.104 /2020 Court No.2 (item No.31) 5562/2024 Page 8 of 8 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 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 AdministrativeTribunal, New Delhi in 0.A. No.14/2018 titled Sant Ram Vs. Commissioner of Police, Delhi &Ors. and judgment dated23.04.2024 passed by the Hon'ble Ms. Justice Rekha Palli & Hon'ble Mr.Justice Saurabh Banerjee, High Court Delhi in W.P.(C) No.5562/2024, CAV 181/2024, CMAppl.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 Indiathat "this is not a fit case for filing of SLP", the order of the disciplinary authority passed 37 OA No.104 /2020 Court No.2 (item No.31) videNo.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 andthe order passed by the Appellate Authority vide No.106- 66/SO/Jt.C.P/Trg, dated 03.11.2017rejecting his appeal, are set aside. Accordingly, Const. (Exe.) Sant Ram, No.324/PTC (PISNo.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 placedunder suspension vide D.D.No.29-A/PTC/JK dated 22.07.2017 and formal issued vide orderNo.1738-70/HAP/PTC (DA-II) dated 26.07.2017. His dismissal/suspension period will be decidedlater on.
Let Const. (Exe.) Sant Ram, No.324/PTC (PIS No.28060573) be informed accordingly.
31. In another judgment of the Hon'ble High Court of Delhi in Writ Petition (C) No.1258/2023 & CM Appl. No. 4759/2023 in case of Commissioner of Police, Delhi vs. Manjeet, the following circular was issued by the Office of Commissioner of Police as under:-
"No. 174/C/HC/24 5110-60 DA-III/Court Cell/PHQ dated 13.05.2024 To The Deputy Commissioner of Police, All District including Units, New Delhi.38 OA No.104 /2020
Court No.2 (item No.31) 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 Hi8gh 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"
Relying upon the circular issued on 11-9-2002, 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 39 OA No.104 /2020 Court No.2 (item No.31) circular dated 11.9.2007 (Annexure A/13 of the rejoinder filed in OA 467/2020). In the said circular, they have emphasized that the disciplinary authority should pass a speaking order(s) based and supported by material/facts on record for dispensing with prior inquiry and before passing such order(s), the disciplinary authority should be satisfied that it is not practicable to hold an inquiry in view of threat, inducement, intimidation, affiliation with criminals etc. and the disciplinary authority has no option but to resort to Article 311(2)(b) of the Constitution of India. The said circular dated 11.9.2007 reads as under:-
"CIRCULAR No. /2007 An analysis has been done by PHQ in 38 cases pertaining to the period between 1.1.2000 to 31.12.05 where action under Article 311 (2) (b) of the Constitution of India was taken against the defaulters. The analysis shows that out of the 38 cases, the action of the department has been upheld by CAT only in two cases and out of these two cases and only one case action was upheld by the Hon'ble High Court of Delhi and most of these cases have been remanded back in the Department by the Tribunal for initiating departmental inquiry.
Though some cases are still pending in the Hon'ble High Court for decision, in a majority of cases, Disciplinary Authorities have resorted to Article 311 (2) (b) on assumptions and conjectures. No speaking orders were passed based on and supported by material/facts on record for dispensing with prior enquiry. Orders for dismissal were passed arbitrarily violating Article 311 and the principles of natural justice.
Henceforth, it has been decided that whenever any Disciplinary Authority intends to invoke Article 311 (2) (b) of the Constitution of India, he must keep in mind the judgment in the case of UOI v. Tulsi Ram Patel, AIR 40 OA No.104 /2020 Court No.2 (item No.31) 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"
32. In another judgment of the Hon'ble High Court of Delhi in Writ Petition (C) No.11276/2024 & CM Appl. No. 46705/2024 in case of Commissioner of Police & ors. V/s Om Prakash & anr., the Hon'ble High Court of Delhi held as under:
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 Commissioner of Police, Delhi to 41 OA No.104 /2020 Court No.2 (item No.31) 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.
33. Having regard to the above, we are of the 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 and 13.05.2024. The reasons given by the respondents for dispensing with the enquiry and closing the already initiated Departmental 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 of 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:- 42 OA No.104 /2020
Court No.2 (item No.31)
(i) Orders dated 20.12.2017 (Annexure A-1) and dated 30.08.2019 (Annexure A-2) passed by the disciplinary and appellate authorities, respectively, and order dated 31.08.2019 (Annexure A-3) 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 direction within eight weeks of receipt of a copy of this order; and
(iv) However, the respondents shall be at liberty to initiate disciplinary proceedings against the applicant in accordance with the law.
(v) With great res train, we hold ourselves back from imposing cost on the respondents. Pending MAs, if any, stand closed.
(Rajinder Kashyap) (R. N. Singh)
Member (A) Member (J)
/ks/