Central Administrative Tribunal - Delhi
Rakesh Kumar vs Gnctd on 30 August, 2024
1
Court No.2 (item No. 34) (OA No.944/23)
Central Administrative Tribunal
Principal Bench
OA No. 944/2023
Reserved on:06.08.2024
Pronounced on : 30.08.2024
Hon'ble Mr.R.N. Singh, Member (J)
Hon'ble Mr. Rajinder Kashyap, Member (A)
Rakesh Kumar
S/o Sh.Satyapal Singh
R/o - Qtr. No. B-2/503, Type -II
Sector -9, PTS Dwarka,
New Delhi-110077
Age 41 years
Group „C‟
Head Constable (Exe.) in Delhi Police
-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,
Jai Singh Road
New Delhi-110001
3. The Joint Commissioner of Police
Southern Range, Delhi
Through the Commissioner of Police
Police Headquarters
Jai Singh Road,New Delhi.
2
Court No.2 (item No. 34) (OA No.944/23)
4. The Deputy Commissioner of Police
South-East District: Delhi
Through the Commissioner of Police
Jai Singh Road, New Delhi
-Respondents
(Through Advocate: Mr.N.D.Kaushik)
ORDER
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 order dated 17.05.2021 whereby the extreme punishment of dismissal from service is being inflicted upon the applicant and order dated 27.02.2023 whereby the statutory appeal of the applicant has been rejected and to further direct the respondents to reinstate the applicant back in service with all consequential benefits including seniority and promotion and pay and allowance. And/or Any other relief which this Hon'ble Court deems fit and proper may also be 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 Court No.2 (item No. 34) (OA No.944/23)
3. The brief facts of the present case are that the applicant was initially appointed as Constable in Delhi Police in the year 1999. He was promoted to the rank of Head Constable. The applicant states that he has unblemished service record and stated that his family is dependent upon on his income and therefore present employment is utmost important for him and his family as a source of sustenance. He further states that he was falsely implicated in a criminal case FIR No. 264/2021 dated 16.05.2021 Under Section 364- A/120-B/34 IPC registered in PS Sun Light Colony Delhi. He was arrested on 16.05.2021 and was granted regular Bail on 08.06.2021.
4. The applicant was placed under deemed suspension on 16.05.2021. He states that the Disciplinary Authority issued an order on 17.05.2021 whereby the applicant was dismissed from service w.e.f. 16.05.2021 by invoking the power under Article 311 (2) (b) of the Constitution of India without conducting departmental enquiry. The reasons recorded by the Disciplinary Authority for dispensing with the enquiry are vague and based on suspicions and surmises. The relevant portion of the order of the 4 Court No.2 (item No. 34) (OA No.944/23) Disciplinary Authority issued on 17.05.2021 reads as under:-
"The involvement and arrest in a criminal case, vide FIR No.264/2021 dated 16.05.2021 u/s 364-A/120-B/34 IPC PS Sun Light Colony of HC (Exe.) Rakesh Kumar is shameful most degradable, abominable and disgusting act of moral turpitude. The delinquent has violated all norms of ethics and morality. Such acts of obsessive corruption and misuse of powers speaks of the character of HC (Exe.) Rakesh Kumar which cannot be tolerated in any disciplined force. This is a case where protectors of law have turned into criminal/ extortionist and has abused the power he was bestowed with. He instead of performing his lawful duty abducted the complainant brother and demanded ransom from her with malafide intentions. Showing even a bit of leniency towards him would be a bad precedent and would encourage other members of the force in believing that these acts are minor delinquencies, which, would be overlooked. Criminal activities is eating the roots of our society and if the guardians of law themselves indulge in such nefarious activities in flagrant violation of decent behaviours, it becomes all the more important to check them forthwith.
He being member of disciplined force instead of discharging his duty honestly and sincerely has indulged himself in criminal activities and extorted money to fulfil his lust. He has violated all norms of ethics and morality by indulging himself into such grave crime. He has tarnished the image of Police Department among the society. He has lowered down the image and goodwill of uniformed organization which is not acceptable from a police officer whose prime duty/responsibility is to protect the common citizen and safeguard the spirit of law. But his conduct has also rudely shaken the faith 5 Court No.2 (item No. 34) (OA No.944/23) of the citizen which they have on police force and its members. He has acted in a most reprehensible manner which is unexpected from the member of the disciplined force and extremely prejudicial to the personal safety and security of the citizen.
After having committed this gravest misconduct of involvement in case FIR No. 264/2021 Dt. 16/05/2021 u/s364-A/120- B/34 IPC Sun Light Colony, if the defaulter is allowed to be continued in police force, it would be detrimental in to public interest and further lower down the image of police force in the society. The facts and circumstances of the case are such that it would not be reasonably practicable to conduct a regular departmental enquiry against the defaulters as there is a reasonable belief that the witnesses may not come forward to depose against a police officer. It is a common experience that due to influencing position of delinquent, witnesses and complainant do not come forward to depose against them in the departmental enquiry. It also calls for great courage to depose against such desperate person and the task becomes more acute and difficult where the delinquent is police official as he may use his job to influence the statement/deposition of the witnesses.
Under these given set of compelling circumstances Article 311 (2) (B) of Constitution of India is required to be invoked in this case for the sake of justice.
Therefore, I, R.P. Meena, Deputy Commissioner of Police, South -East District, New Delhi do hereby order to DISMISS the defaulter HC (Exe.) Rakesh Kumar No. 408/SE, PIS No. 28990716, from the service w.e.f. 16.05.2021 i.e. date of arrest under Article 311 (2) (b) of Constitution of India".6
Court No.2 (item No. 34) (OA No.944/23)
5. Aggrieved by the aforesaid impugned order dated 17.05.2021, the applicant made an appeal on 17.06.2021. After lapse of one year when the appeal was pending with the Appellate Authority, the applicant approached this Tribunal by way of OA No.1697/2022, which was disposed of vide order dated 08.07.2022 with a direction to the respondent to decide the appeal by passing an appropriate reasoned and speaking order as expeditiously as possible and in a stipulated time frame of four weeks. In compliance thereof, the Appellate Authority passed an order dated 27.02.2023 whereby statutory appeal of the applicant was rejected without application of mind and even without considering applicant‟s submissions and pleas raised in the appeal. Thus, making the said order bad in law. For facility of reference, it would be appropriate to mention relevant portion of Appellate-order which reads as follows:-
"I have carefully gone through the appeal filed by the appellant, as well as relevant record available on file and have also heard him in OR on 11.11.2022, during which he reiterated the facts already explained in his written appeal. Point wise 7 Court No.2 (item No. 34) (OA No.944/23) reply to the pleas taken by Appellant is as follows:-
1 to 5 The pleas of the appellant have no force. A Preliminary enquiry into the matter was conducted vide order No. 1726/HAP (P-I)/SED dated 16.05.2021 by AddI, DCP-II/South East District.
The facts and circumstances of the case were such that it was not reasonably practicable to conduct a regular departmental enquiry against the appellant as there was reasonable belief that the witnesses might not come forward to depose against him. The appellant alongwith his associates had abducted one Varun and demanded Rs. 3 Lacks as ransom to release him. Later on by the effort of police staff of PS Sunlight Colony, Varun was recovered from PS Jamia Nagar, where he was in the custody of the appellant and his associates. It was revealed that neither the SHO nor the Duty officer of PS Jamia Nagar was informed by the appellant about the apprehension of Varun, Appellant had not lodged any GD entry regarding his departure or arrival in P.S. Jamia Nagar, in the instant matter, which clearly showed his malafide intention. Accordingly, a case vide FIR No. 264/2021 dated 16.05.2021 u/s 364-A/120-B/34 IPC PS Sun Light Colony was registered against the appellant and others and subsequently the disciplinary authority had dismissed the appellant from service under Article 311(2)(b) of the Constitution of India on the merit of the case.
6 to 10 The pleas of the appellant do not carry any weight. The complainant had made PCR call stating that her brother had been kidnapped and a ransom of Rs. 3 Lakh had been demanded. She further informed that she had Rs. 1 lakh cash with her and was standing at Sarai Kale Khan Bus Stand. Later on, brother of the complainant was found in the captivity of the appellant at P.S. Jamia Nagar, where it was revealed that neither the SHO nor the Duty officer of PS Jamia Nagar was informed by the appellant about apprehension of accused. 8 Court No.2 (item No. 34) (OA No.944/23) Appellant had not lodged any DD entry regarding his departure or arrival in P.S. Jamia Nagar in the instant matter, which clearly shows his malafide intention. Accordingly, a case vide FIR No. 264/2021 dated 16.05.2021 u/s 364-A/120-B/34 IPC PS Sun Light Colony was registered against the appellant and others.
11 to 16 The brother of the complainant was found in the custody of the appellant at P.S. Jamia Nagar and the staff of PS Sunlight Colony nabbed the appellant alongwith the victim and one Amir. Accordingly, a case vide FIR No. 264/2021 dated 16.05.2021 u/s 364-A/120-B/34 IPC PS Sun Light Colony was registered against the appellant and others. A P.E. into the matter was conducted vide order No. 1726/HAP (P-I)/SED dated 16.05.2021 by Addl, DCP-II/South East District. The disciplinary authority has dismissed the appellant from service under Article 311(2)(b) of the Constitution of India on the basis of merit of the case. The appellant being member of Delhi Police was governed by the service rules applicable to him and his case was decided by the competent authority as per rules and procedure. The judgment of Supreme Court and others were decided on the facts and merits of individual cases and the same is not attracted in this case. The appellant has showed his criminal propensity and immoral attitude. Appellant being a member of disciplinary force was responsible for protecting the society and citizens of the country from criminal activities, but instead of discharging his duty ethically and sincerely, he has tarnished the image of Delhi Police and has rudely shaken the faith of the citizens upon the entire police force. Appellant has acted in a most reprehensible manner which is not expected from a member of a disciplined force and is undoubtedly extremely prejudicial to the safety and security of the society at large. Keeping in view all the facts and circumstances of the case, I am of the firm view that the act of the appellant attracted the provisions of Article 311 (2) 9 Court No.2 (item No. 34) (OA No.944/23)
(b) of Constitution of India and has made the appellant unfit for police service. Hence, I am not inclined to disagree with the decision taken by the disciplinary authority. Therefore, the appeal submitted by Ex. HC (EXe.) Rakesh Kumar, No. 408/SE (PIS No. 28990716) is hereby rejected. Let the appellant be informed accordingly."
6. The applicant states that the reasons recorded in the order of Disciplinary Authority for dispensing with the Departmental Enquiry are vague, evasive and false. The main objective is to adopt the short cut method with the sole intent to avoid Departmental Enquiry and thus the power under Article 311 (2)(b) has been exercised imposing extreme punishment of dismissal from service and further establishing the absolute abuse of the process of law.
7. He states that as per Rule of law, it was incumbent upon the authorities not to use Article 311 (2)(b) and to give an opportunity to the applicant to put forward his defence in Departmental Enquiry. It is also stated that gravity of misconduct alleged in the criminal case cannot be a ground to invoke the power of Article 311 (2)(b) unless and until Departmental Enquiry is not reasonably practicable. Moreover, the Disciplinary Authority within the impugned order has assumed as if the allegations made in the criminal case 10 Court No.2 (item No. 34) (OA No.944/23) stood proved. Even the Appellate Authority did not consider the pleas and submissions raised by the applicant in his Appeal and mechanically rejected the same. Thus on presumptions, the Disciplinary Authority imposed the extreme punishment of dismissal from service and the Appellate Authority confirmed the same in a mechanical manner.
8. The applicant has placed reliance on the judgment of this Tribunal on the use of Article 311(2(b) that is OA NO 2097/2019 Neeraj Kumar vs Delhi Police dated 01 November 2019, Ins. Jasmohinder Singh OA NO 2867/2019 decided on 16" Oct 2020, Ins. Dharmender Singh Dangi OA No. 702/2019 decided on 7 January 2021, OA 1912/2015- Kripal Singh Vs Govt of NCTD & Ors. decided on 11.3.2021 and OA No. 1114/2018- Tara Dutt Vs GNCT of Delhi & Ors. decided on 17.6.2021 and Connected OAs No. 1383/2020, 3508/2018, 4021/2016, 3027/2018, 2777/2019, 3267/2019, 467/2020 and 34/2021 titled Sumit Sharma Vs Govt. of NCT of Delhi & Ors. decided on 10.02.2022, on the use of Article 311(2) (b) by the respondents authorities, OA No. 1019/2023 (Dushyant Vs GNCTD) decided on 13.12.2023, OA No. 11 Court No.2 (item No. 34) (OA No.944/23) 3436/2022 & 3494/2022 (Sandeep Moun vs GNCTD and Sandeep Bishnoi Vs. GNCTD) decided on 16.8.2023. The judgment of Dushyant is being upheld by Hon'ble Delhi High Court in Writ Petition No. 2407/2024, dated 19.02.2024, 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- Special Leave to Appeal (c) NO.- 11681/2024 decided on 10.07.2024 in the matter of Commissioner of Police & Anr. Vs. Jagmal Singh, 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/PHQ Delhi.
9. At the time of oral hearing, the learned counsel for the applicant Shri Sachin Chauhan has argued that the impugned order passed by the Disciplinary and Appellate Authorities are being passed without application of mind as the power of Disciplinary Authority is in utter 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 12 Court No.2 (item No. 34) (OA No.944/23) to departmentally enquiry straight way dismissed the applicant from service.
10. The learned counsel for the applicant also submitted that admittedly the preliminary enquiry was conducted by Sh. Dhal Singh, Addl. DCP-II/SED in order to construe that the allegations are true against the applicant the said enquiry too is conducted at the back of the applicant. The relevant extract of the order of Appellate Authority dated 27.02.2023 is reproduced herein below:-
"A Preliminary Enquiry was ordered by DCP/South East District vide order No. 1726/HAP (P-)/SED dated16.05.2021, to establish the nature of default, to identify defaulters, to collect prosecution evidence, to judge quantum of default and to bring relevant documents on record to facilitate further course of action against the erring official or otherwise. The PW was entrusted to Sh. Dhal Singh, Addl. DCP- II/SED."
11. The learned counsel for the applicant has further submitted that the Disciplinary Authority and the Appellate Authority did not make the required and possible effort to initiate 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 13 Court No.2 (item No. 34) (OA No.944/23) case, only acting on the presumption and surmises, the respondents came to the conclusion the departmental enquiry is not practicable and such conclusion /determination of the respondents are not sustaining in the eyes of law.
12. The learned counsel for the applicant has also 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 and the pre-condition is that a departmental enquiry is not reasonably practicable and to come to that conclusion, the Disciplinary Authority has to record reason (s), and reasoning in the case in hand is on basis of assumption. The applicant has committed the alleged crime without there being conclusive verdict in that learned court of the aforesaid case FIR.
13. The respondents have filed counter affidavit on 23.05.2023 wherein they have stated that the applicant was arrested in case FIR No.264/2021 dated 16.05.2021 u/s 364-A/120-B/34 IPC registered in PS Sun Light Colony Delhi on the allegation that on 15.05.2021, a PCR call vide DD No.57-A was received 14 Court No.2 (item No. 34) (OA No.944/23) in PS Sun Light Colony in which a lady caller stated that her brother has been kidnapped and a ransom of Rs.3.00 lakhs has been demanded. At that time, she had Rs.1 lakh cash with her and standing at Sarai Kale Khan Bus Stand. The call was then marked to HC Ram Kumar No. 453/SE. But looking at the seriousness of the PCR Call, SHO Sun Light Colony Prem Singh, I/C PP Sarai Kale Khan, Pradeep Sharma and SI Arun along with staff reached the spot and met the complainant. During the enquiry, the complainant stated that her brother Varun has been abducted by some unknown persons who demanded Rs.3.00 lakhs as ransom with a direction to come near Akshardham Temple telling that they are cops. They caller stated that her brother is wanted in a case of decoity. After reaching Akshardham Temple, complainant called on whatsapp of mobile number of her brother, the alleged caller directed her to come at Sarai Kale Khan Bus Stand. Accordingly, complainant reached Sarai Kale Khan Bus Stand and made a call saying that right now she has only Rs.50,000/-, then the callers demanded Rs.1,80,000/- and threatened that if this much amount would not be paid then her brother would be put in lock-up. Aggrieved, the complainant called 100 15 Court No.2 (item No. 34) (OA No.944/23) number for help. She stated that abductors also called through their WhatsApp Nos.9990421359 and 7248801691 on the mobile of her sister Aarti. In this regard various sources were developed and informer network was also activated. Thereafter, with the help of technical surveillance, the location of mobile no.9990421359 was found near PS Jamia Nagar, Delhi. Thereafter, a raiding team comprising of I/C PP Sarai Kale Khan, SI Pradeep Sharma, HC Ram Kumar No.453/SE and Ct.Pawan No.2826/SE departed to P.S. Jamia Nagar, Delhi. Later, the team returned to PS Sun Light Colony along with victim Varun s/o Rajmal. The team also detained and brought the applicant posted at PS Jamia Nagar, Delhi and accused Amir s/o Nawab at PS Sun Light Colony as the victim Varun was under the custody of both the applicant and accused Amir. In this regard, FIR No.264/2021 dated 16.05.2021 u/s 364-A/120-B/34 IPC was registered in PS Sun Light Colony. During the course of investigation, both the accused persons i.e. applicant and Amir admitted the commission of crime and were accordingly arrested as per legal provisions of law. 16 Court No.2 (item No. 34) (OA No.944/23)
14. The respondents further stated that involvement and arrest of the applicant in a criminal case is shameful, most degradable, abominable and disgusting act of moral turpitude as he has violated all norms of ethics and morality. Such acts of obsessive corruption and misuse of powers speaks of the character of the applicant which cannot be tolerated in any disciplined force. This is a case where protectors of law have turned into criminal/extortionist and has abused the power he was bestowed with. The applicant instead of performing his lawful duty abducted the complainant‟s brother and demanded ransom from her with malafide intentions. Showing even a bit of leniency towards him would be a bad precedent and would encourage other members of the force in believing that these acts are minor delinquencies, which would be overlooked. Keeping in view the conduct of the applicant, who acted in a most reprehensible manner which is unexpected from the member of the discipline force and extremely prejudicial to the personal safety and security of citizen, it was not practically possible to initiate departmental enquiry against the applicant and, therefore, the respondents have rightly invoked the power of Article 311 (2) (b) of the Constitution of 17 Court No.2 (item No. 34) (OA No.944/23) India and imposed the punishment of dismissal from service on the applicant.
15. The applicant has filed rejoinder to the counter affidavit filed by the respondents on 23.05.2023. The applicant has reiterated stand mentioned in the OA and has placed reliance on the following the judgments:-
(i) Neeraj Kumar vs. Delhi Police [OA No.2097/2019 decided on 01.11.2019];
(ii) Ins. Jagmohinder Singh [OA No2867 of 2019 decided on 16.10.2020];
(iii) Ins. Dharmender Singh Dangi [OA No.702 of 2019 decided on 07.01.2021];
(iv) Kripal Singh vs. GNCTD [OA No.1912 of
2015 decided on 11.03.2021]; and
(v) Tara Dutt vs. GNCT&D & Ors. [OA
No.1114 of 2018 decided on 17.06.2021].
16. The applicant contends that the respondents failed to give reply to the specific averments made by the applicant within the body of the OA. Counter affidavit given by the respondents is repetition and do not deal with the factual and legal submission made in the body of the OA.
17. We have heard the learned counsels for the parties and have perused the pleadings available on records. Learned counsel for the applicant has submitted an additional list of judgments of the cases 18 Court No.2 (item No. 34) (OA No.944/23) on which he is placing reliance. The order passed by the Principal Bench of this Tribunal on 13.12.2023 in OA No.1019/2023 in the case of Dushyant Kumar vs. Govt. of NCT of Delhi & Ors., The judgment dated 19.02.2024 of the Hon'ble High Court of Delhi in W.P.( C) No. 2407/2024 in Govt. of NCT of Delhi and Ors. Vs. Dushyant Kumar; The order passed by the Principal Bench of this Tribunal on 16.04.2024 in OA No.542/2023 in the case of Deepak vs. Govt. of NCT of Delhi & Ors; The judgment dated 22.04.2024 of the Hon‟ble High Court of Delhi in W.P.( C) No. 1258/2023 in Commissioner of Police Delhi Police & Ors. Vs. Manjeet; & judgment dated 20.03.2024 in W.P.( C) No. 4201/2024 in Commissioner of Police & anrs. Vs. Jagmal Singh and also the judgment dated 20.03.2024 of the Apex Court in Petition for Special Leave to appeal (C) No.11681/2024 in case of Commissioner of Police & anr. Vs. Jagmal Singh; the judgment dated 23.04.2024 passed by the Hon'ble High Court of Delhi in W.P.(C) No. 5562/2024, CAV 181/2024, CM Appl. No. 22929/2024 in the case of Commissioner of Police vs. Sant Ram; and the circular dated 13.5.2024 19 Court No.2 (item No. 34) (OA No.944/23) issued by the Delhi Commissioner of Police, Legal Division dated PHQ Delhi.
18. The learned counsel for the respondents pleaded that the respondents have given detailed justification of invocation of the Article 311 (2) (B) of the Constitution of India in their Disciplinary order and Appellate order. They repeatedly stated that further continuation of the applicant in disciplined force like Delhi Police which is responsible for protecting the society and citizens of the country from immoral and disrespectable activities will rudely shake the faith of the citizens in Delhi Police Force. The applicant has acted highly unbecoming of Police Officer. Therefore, keeping in view the position in the matter, respondents have resorted to invocation of Article 311(2) (B) and dismissed the applicant from the government service.
19. Learned counsel for respondents stated that Disciplinary Authority and 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) 20 Court No.2 (item No. 34) (OA No.944/23) 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 Articles of the Constitution of India are invoked only to avoid the disciplinary enquiry and get rid of the applicant in convenient manner.
20. It is apparent from the orders of respondents that the Disciplinary Authority did not mention the reasonable grounds even when Preliminary Enquiry was ordered against the applicant. It could be seen from the appellate order that Appellate Authority had rejected the appeal in a mechanical manner without addressing specific submissions of the applicant and merely on presumptions that the allegation against the applicant is presumed to be proved and the witness might not have come forward to depose against the applicant. The Appellate Authority is simply assuming that the allegations against the applicant stands proved and this justification is good enough to invoke the Article 311 (2) (b) of the Constitution of India and dismiss the applicant. The Appellate Authority did not explore in the present case that majority of the 21 Court No.2 (item No. 34) (OA No.944/23) 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 against the applicant and their disdain approach to uphold Rule of Law. The respondents being Senior Police Officer holding high position and are required to run the administrative decision making lawfully. A serious course correction is needed. Leaving this argument here for pondering of competent authority, we proceed further.
21. In the recent matter decided on 14.08.2024 by the Hon‟ble High Court of Delhi in W.P.(C) No.11276/2024 and CM Appl. 46705/2024. CM Appl. 46706/2024 in the matter of The Commissioner of Police & Ors. vs OM Prakash & anr., wherein the Commissioner of Police has been directed by the High Court of Delhi to look into the matters where Article 22 Court No.2 (item No. 34) (OA No.944/23) 311(2)(b) of the Constitution of India has been invoked by the police authorities and police personnel have been removed from the service. Only on presumptions and assumptions without any material, coming to the conclusion or that it was not reasonably practicable to conduct regular departmental enquiry as witness might not come forward to decide the case and Appellate Authority depose against a police officer respondents have rejected the appeal which could be construed as bad in law.
22. It is clear 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 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 23 Court No.2 (item No. 34) (OA No.944/23) Disciplinary Authority is being passed invoking Article 311(2)(b) of the Constitution of India. There are circulars, judgment of judicial forums which clearly states that if the allegations are grave then more opportunity should be provided to the delinquent official to put forward his defense. The applicant has not been subjected to a departmental enquiry and merely on assumptions the disciplinary authority adopting a short cut and has invoked the power under Article 311(2)(b) of the Constitution of India. The reasoning recorded by Disciplinary Authority is based on suspicion and surmises. 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 as there is a "reasonable belief" 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 24 Court No.2 (item No. 34) (OA No.944/23) 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 authority that the applicant has made any attempt to influence any witness thus making the order of disciplinary authority as bad in law.
23. 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 authorities to conclude that the witness is threatened or intimidating or will not depose in departmental enquiry and thus reason recorded for dispensing the Departmental Enquiry under Article 311 (2) (b) of Constitution of India are not tenable. As stated above, the applicant is only a Head 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 25 Court No.2 (item No. 34) (OA No.944/23) 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. 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 Departmental Enquiry. 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.
24. 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 present case and to give opportunity to the applicant to put forward his defence in the departmental enquiry. The gravity of misconduct alleged in the present case cannot be a ground to invoke the power under Article 311 (2) (b) of the Constitution of India. The applicant as per rule of law must be given opportunity to put forward his defence in regular Departmental Enquiry 26 Court No.2 (item No. 34) (OA No.944/23) until and unless the same is not reasonably practical. The reasons recorded in present impugned order to dispensing with the Departmental Enquiry 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 Article 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.
25. There is no attempt to initiate departmental enquiry as nothing has been brought on record, subsequent to the allegation that the applicant has made any attempt to influence the witness and thus the reasonable belief is based merely on suspicion and surmises. The reasoning to dispense 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 for dispensing 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 27 Court No.2 (item No. 34) (OA No.944/23) said departmental enquiry due to such actions of the applicant. Therefore, while taking no action to conduct disciplinary enquiry and giving threat to witnesses etc. are the reasoning based on mere probability and suspicion and surmises. There was no material placed before the authority to come on to this conclusion and to invoke Article 311 (2) (b) of the Constitution of India.
26. The power under Article 311 (2) (b) of the Constitution of India has been invoked subsequent to a preliminary enquiry. The object of conducting the preliminary enquiry for invoking the power under Article 311 (2) (b) of the Constitution of India is being laid down in circular dated 11.09.2007, the reason for dispensing away with the departmental enquiry are on suspicion and surmises and no such material even through preliminary enquiry is being placed before any of the authorities on the basis of which the conclusion would be drawn whether the departmental enquiry is not practicable or even remotely supports the vague reasons recorded to dispense with the departmental enquiry. The cases in which preliminary enquiry is being conducted but in absolute violation of circular dated 11.9.2007 and straightaway the Disciplinary 28 Court No.2 (item No. 34) (OA No.944/23) 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 OA No-2500/2006.
27. The Appellate Authority records that Preliminary Enquiry into the matter was conducted by Addl. DCP- II/South East District on 16.5.2021. A copy of preliminary enquiry report is not supplied to the applicant nor the applicant has been part of the preliminary enquiry but on the contrary, the law is that if Preliminary Enquiry is possible then even the departmental enquiry is also possible and in such cases the Article 311 (2) (b) of the Constitution of India is not invoked. The applicant is placing reliance on the judgment of Hon'ble Tribunal decided on 23.4.2018 whereby the Hon'ble Tribunal after relying the judgment of Tarsem Singh, Hon'ble Apex Court whereby the Hon'ble Tribunal clearly stating;
"29. In Tarsem Singh's case Apex Court while allowing the appeals categorically observed " if a preliminary enquiry could be conducted, we fail to see any reason as to why a formal departmental enquiry could not have been initiated against the applicant. Reliance placed upon such a preliminary enquiry without complying with the minimal requirements of the principle of natural justice is 29 Court No.2 (item No. 34) (OA No.944/23) against all canons of fair play and justice'. Accordingly, in the facts of the present OAs, we hold the issue in favour of the applicant. 30. In the circumstances and for the aforesaid reasons, all the OAs are allowed and the impugned orders are set aside with all consequential benefits. Since the applicant was under suspension as on the date of passing of the impugned orders, they would thus remain under suspension and the respondents shall take an appropriate decision regarding revocation or continuation of the same. The respondents shall proceed against the applicant departmentally, as per rules and the treatment of suspension period shall be dependent on the same. No costs. "
28. In the present case, when the P.E. is possible then even a Departmental Enquiry is also possible and thus the reasoning recorded by the Disciplinary Authority for dispensing with the D.E. is bad in law. The disciplinary authority did not even make the slightest possible effort to initiate a departmental inquiry as only after initiating a departmental inquiry a disciplinary authority can come to the conclusion that departmental inquiry is not reasonably practicable. Without making any efforts and only acting on the presumption and surmises, the disciplinary authority on its own came to the conclusion that departmental inquiry is not practicable. Thus it is wrong to say that the present Departmental Enquiry is not reasonably practicable.
30Court No.2 (item No. 34) (OA No.944/23)
29. The disciplinary authority is not able to apply its mind that the power under Article 311 (2) (b) of the Constitution of India has to be exercised with a pre- condition. The pre-condition is that if a disciplinary enquiry is not reasonably practical and to arrive at such conclusions, the Disciplinary Authority has to record reasons. The present reasoning is based on the assumption that the applicant has committed the alleged crime and thus departmental enquiry is not required. The Disciplinary Authority on the presumption that the act committed by the applicant is so grave that it is practically not feasible to conduct enquiry, hence, came to conclusion that there is no need to conduct the departmental 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 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.
31Court No.2 (item No. 34) (OA No.944/23)
30. The present case is a case of absolute misuse of power vested in the Disciplinary Authority under Article 311 (2) (b) of the Constitution of India and, hence, bad in law. The reasons recorded by the authorities to dispense away with the departmental enquiry does 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 defense 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 32 Court No.2 (item No. 34) (OA No.944/23) dismissing the applicant by invoking the power under Article 311 (2) (b) of the Constitution of India only keeping in mind the gravity of the allegations.
31. The applicant preferred an appeal against the punishment order of dismissed from services on 17.05.2021. The Appellate Authority rejected the appeal on 27.02.2023 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 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 more graver the charge the opportunity to defend himself should be more.
32. 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 same is reproduced below:-
33
Court No.2 (item No. 34) (OA No.944/23) "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 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 34 Court No.2 (item No. 34) (OA No.944/23) Sharma (supra) and a batch of cases. Therefore, the present OA deserves to be partly allowed and hence, the same is partly allowed with the following directions:- (i) Orders dated 03.10.2022 (Annexure A/1) and dated 10.3.2023 (Annexure A/2) passed by the disciplinary and appellate authorities respectively are set aside; (ii) The applicant shall be entitled to all consequential benefits in accordance with the relevant rules and law on the subject; (iii) The respondents shall implement the aforesaid directions within eight weeks of receipt of a copy of this order; and (iv) However, the respondents shall be at liberty to initiate disciplinary proceedings against the applicant in accordance with the law. 12. However, in the facts and circumstances, there shall be no order as to costs."
33. The order of this Tribunal was challenged in the Hon‟ble High Court of Delhi in W.P.(C) 2407/2024 in the matter of Govt. of Delhi and Ors. Vs. Dushyant Kumar. The Hon‟ble High of Delhi dismissed the Writ Petition being meritless. The relevant portion of the said judgment is as under:-
"14. In the light of the aforesaid, we have no hesitation in concurring with the Tribunal that the petitioners' decision to dispense with the enquiry was wholly unsustainable. The petitioners appear to have proceeded on an erroneous presumption that merely because a criminal case has been registered against the respondent, he was to be treated as guilty of the misconduct. No doubt, the respondent is a police officer, whose misconduct can never be condoned, but this would not imply that the principles of natural justice should be given a complete go by. As noted hereinabove, the petitioners have not given any valid reason for dispensing with the enquiry except for repeatedly stating that the respondent is guilty of serious misconduct. This course of action, in our view, is completely impermissible.35
Court No.2 (item No. 34) (OA No.944/23)
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. 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 36 Court No.2 (item No. 34) (OA No.944/23) rather than doctrinaire, functional rather than formal and practical rather than "precedential"."
16. We are, therefore, of the considered view that the petitioners have not only ignored the decisions of the Apex Court laying down the parameters for applicability of Article 311(2)(b) of Constitution of India, but have also ignored their own circulars dated 21.12.1993 and 11.09.2007. We, therefore, find no infirmity with the impugned order.
17. The writ petition being meritless is, accordingly, dismissed with all pending applications."
34. In the order dated 16.04.2024 in OA No 542/2023 in OA 591/2023 passed in case of Deepk vs. Govt.of NCT of Delhi & Ors of this Tribunal. The Tribunal held as under:-
" 20. In the present case, as apparent from the reasons recorded by the respondents in the impugned order, it is apparent that the respondents have arrived at the conclusion for dispensing with the regular inquiry due to the involvement of the applicants in a grave and serious case. The respondents have jumped to the conclusion that on account of serious allegations, the applicants have become ineligible to be continued in police force. There is no finding that the 24 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. 37 Court No.2 (item No. 34) (OA No.944/23) 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 from the date of receipt of a copy of this order.
(iv) the respondents shall be at liberty to initiate disciplinary proceedings against the applicants if they are so advised, of course in accordance with rules and instructions on the subject.
22. However, in the facts and circumstances of the case, there shall be no order as to costs."
35. In Writ Petition (C) No. 1258/2023 & CM App. No.4759/2023 in the case of Commissioner of Police 38 Court No.2 (item No. 34) (OA No.944/23) Delhi Police & Ors. Vs. Manjeet; The Hon‟ble High Court of Delhi vide its judgement dated 22.04.2024 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 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.
11. No doubt, the respondent is a police personnel and any misconduct on his part is liable to be dealt 39 Court No.2 (item No. 34) (OA No.944/23) with appropriately. This, however, does not imply that the petitioners could, on the basis of the gravity of the charges levelled against him, with an enquiry on absolutely vague grounds. As noted hereinabove, the petitioners have given no reason whatsoever in the impugned order for dispensing with the inquiry. The impugned order of dismissal proceeds on the basis that the respondent's guilt had already been proved in the preliminary enquiry. Furthermore, it is not as if the respondent has been let off without any departmental action being taken against him, as the learned Tribunal has already granted time to the petitioners to initiate departmental proceedings against him as per law.
12. For the aforesaid reasons, we find no reason to interfere with the impugned order. The writ petition being meritless is dismissed along with all applications.
13. Before we conclude, we are constrained to observe that in a large number of petitions filed by the Commissioner of Police which are coming up before this Court, we are finding termination orders are being passed by the petitioners by dispensing with departmental enquiries in a most mechanical manner without recording any valid reasons. We, therefore, direct that a copy of this order be placed before the Commissioner, Delhi Police to ensure that in future, enquiries are not dispensed with without assigning justifiable reasons."
36. In other Writ Petition (C) No.4201/2024 on 20.03.2024 in case of Commissioner of Police and anr. Vs. Jagmal Singh. The Hon‟ble High Court of Delhi has held as under:-
"10. From a perusal of the aforesaid, we find that the petitioners have proceeded to dispense with the enquiry against the respondent only because of the grave nature of allegations levelled against him and have simply observed that since the respondent had lowered the image of the police 40 Court No.2 (item No. 34) (OA No.944/23) 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.
12. For the aforesaid reasons, we find no infirmity with the impugned order. The writ petition, being meritless, is along with accompanying application, dismissed."
37. In the Special Leave to Appeal (C) No. 11681/2024 filed by the Commissioner of Police & Anr. Vs. Jagmal Singh, The Hon‟ble 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.
41Court No.2 (item No. 34) (OA No.944/23)
38. In another matter, the Hon‟ble High Court of Delhi in W.P.(C) No. 5562/2024, CAV 181 /2024 CM Appl. 22929/2024 vide its judgment dated 23.04.2024 in the case of Commissioner of Police and ors. Vs. Sant Ram, the Hon‟ble High Court of Delhi in para 9 to 12 has held as under:-
"9. A bare perusal of the aforesaid reasons contained in the dismissal order makes it clear that the primary reason for the petitioners not holding any enquiry against the respondent was their presumption that the respondent would threaten or intimidate the complainant and other witnesses. The petitioners were further of the view that a prolonged enquiry would cause more trauma to the complainant. It is also evident from the dismissal order that the petitioners had, on the basis of the evidence led in the preliminary enquiry, already made up their mind that the respondent was guilty of serious misconduct and had lowered the image of the police force in the eyes of the public.
10. In our considered view, even though the charges against the respondent are very serious and the interest of the complainant deserves to be protected, it does not imply that the principles of natural justice as also the provisions of section 11 of The Sexual Harassment of Women at 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 42 Court No.2 (item No. 34) (OA No.944/23) 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) 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.
39. In pursuance to the order of this Tribunal in OA No.14/2018 titled as Sant Ram vs. Commissioner of Police and the judgment of the Hon'ble High Court of 43 Court No.2 (item No. 34) (OA No.944/23) Delhi in W.P.(C) 5562/2024, CAV 181/2024 CM Appl. No.22929/2024, the respondents reinstated the services of the applicant Shri Sant Ram in that case. The order dated 26.07.2024 is reproduced as under;-
In pursuance of judgment dated 06.02.2024 passed by the Principal Bench of Hon'ble Mr. R.N. Singh, Member (J) & Hon'ble Mr. Sanjeeva Kumar, Member (A), Central Administrative Tribunal, New Delhi in 0.A. No.14/2018 titled Sant Ram Vs. Commissioner of Police, Delhi & Ors. and judgment dated 23.04.2024 passed by the Hon'ble Ms. Justice Rekha Palli & Hon'ble Mr. Justice Saurabh Banerjee, High Court Delhi in W.P.(C) No.5562/2024, CAV 181/2024, CM Appl.22929/2024 - Stay, CM Appl. 22930/2024 - Ex./LLOD titled Commissioner of Police & Ors. Vs. Sant Ram as well as opinion of Ms. Aishwarya Bhati, Ld. Addl. Solicitor General of India that "this is not a fit case for filing of SLP", the order of the disciplinary authority passed vide No.1833- 1900/HAP/PTC (P-II) dated 01.08.2017 vide which Const. (Exe.) Sant Ram, No.324PTC (PIS No.28060573) was dismissed from the Delhi Police force under Article311(2(b) of Constitution of India deciding his suspension period as period not spent on duty and the order passed by the Appellate Authority vide No.106- 66/SO/Jt.C.P/Trg, dated 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.
44Court No.2 (item No. 34) (OA No.944/23) Let Const. (Exe.) Sant Ram, No.324/PTC (PIS No.28060573) be informed accordingly.
40. In other judgment of the Hon‟ble High Court of Delhi in Writ Petition (C) No.1258/2023 & CM Appl. No. 4759/2023 in case of Commissioner of Police, Delhi vs. Manjeet, the following circular was issued by the Office of Commissioner of Police as under:-
"No. 174/C/HC/24 5110-60 DA-III/Court Cell/PHQ dated 13.05.2024 To The Deputy Commissioner of Police, All District including Units, New Delhi.
Sub: W.P. (C) No. 1258/2023 & CM Appl. No. 4759/2023 in the matter of Commissioner of Police, Delhi vs. Manjeet.
Memo Enclosed please find here with a copy of letter No. 10264/W/DHC/ Writs/D-9/2023 dated 26.04.2024 received from the Registrar General, Delhi High Court alongwith copy of the order dated 22.04.2024 wherein the Hon'ble has observed that " in large number of petitions filed by the Commissioner of Police which are coming up before the this Court, we are finding termination orders are being passed b y the petitioners by dispensing with departmental enquiries in a most mechanical manner without recording any valid reasons. We, therefore, direct that a copy of this order be placed before the Commissioner of Police, Delhi to ensure that 45 Court No.2 (item No. 34) (OA No.944/23) 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 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:-
46
Court No.2 (item No. 34) (OA No.944/23)
"CIRCULAR No. /2007
An analysis has been done by PHQ in 38
cases pertaining to the period between 1.1.2000 to 31.12.05 where action under Article 311 (2) (b) of the Constitution of India was taken against the defaulters. The analysis shows that out of the 38 cases, the action of the department has been upheld by CAT only in two cases and out of these two cases and only one case action was upheld by the Hon'ble High Court of Delhi and most of these cases have been remanded back in the Department by the Tribunal for initiating departmental inquiry.
Though some cases are still pending in the Hon'ble High Court for decision, in a majority of cases, Disciplinary Authorities have resorted to Article 311 (2) (b) on assumptions and conjectures. No speaking orders were passed based on and supported by material/facts on record for dispensing with prior enquiry. Orders for dismissal were passed arbitrarily violating Article 311 and the principles of natural justice.
Henceforth, it has been decided that whenever any Disciplinary Authority intends to invoke Article 311 (2) (b) of the Constitution of India, he must keep in mind the judgment in the case of UOI v. Tulsi Ram Patel, AIR 1985 SC 1416. Only in cases where Disciplinary Authority is personally satisfied on the basis of material available on file that the case is of such a nature that it is not practicable to hold an 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 47 Court No.2 (item No. 34) (OA No.944/23) Constitution of India, Disciplinary Authority has to take prior concurrence of Spl. CP/Admn.
This has the approval of C.P., Delhi.
Sd/-
(S.N. SRIVASTAVA) JT. COMMISSIONER OF POLICCE:
HDQRS,: DELHI"
41. The Hon‟ble High Court of Delhi in WP(C )No. 11276/2024 and CM Appl. No.46705/2024, CM Appl. No. 46706/2024 in the matter of The Commissioner of Police & Ors. vs. OM Prakash & Anr. decided on 14.08.2024 has taken a serious cognizance of the order passed by the Disciplinary Authority in which Delhi Police resorting to invocation of Article 311(2) (B) of the Constitution of India. For facility of reference, the relevant portion of above mentioned judgment is as follow:-
"20. Accordingly, finding no error in the impugned order passed by the learned Tribunal, the present petition is dismissed.
21. Before parting with this matter, we hereby direct the Commission of Police Delhi to personally look into such matters and take proper decision so that Courts/Tribunals are not burdened with a case where departmental inquiries can be initiated. We hereby make it clear that if such like petitions are filed in future wherein dismissal or suspension orders are passed without holding any enquiry without any plausible reasoning, certainly heavy cost will be imposed and that too, will be recovered from the Officer, who takes such type of unwarranted decision.48
Court No.2 (item No. 34) (OA No.944/23)
22. A copy of this order be transmitted to the Commissioner of Delhi Police for information and compliance."
42. Having regard to the above, we are of the 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 13-5-2024. 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 Court(s) and followed by this Tribunal in a catena of cases, a few of which are referred to hereinabove.
43. In view of the aforesaid facts and circumstances 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:-
(i) Orders dated 17.05.2021 (Annexure A-1) and dated 27.02.2023 (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;49
Court No.2 (item No. 34) (OA No.944/23)
(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) There shall be no order as to costs.
Pending MAs, if any, stand closed.
(Rajinder Kashyap) (R. N. Singh)
Member (A) Member (J)
/mk/