Central Administrative Tribunal - Delhi
Sant Ram vs Comm. Of Police on 6 February, 2024
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No.14 of 2018
Orders reserved on : 02.01.2024
Orders pronounced on : 06.01.2024
Hon'ble Mr. R.N. Singh, Member (J)
Hon'ble Mr. Sanjeeva Kumar, Member (A)
Sant Ram
S/o Sh. Pratap Singh
R/o Village & P.O. Chuliana,
Distt. Rohtak (Haryana)
Aged about 33 years
(Group 'C')
(Dismissed Constable/Delhi Police)
...Applicant
(By Advocate: Shri Ajesh Luthra)
VERSUS
1. Commissioner of Police,
P.H.Q., MSO Building,
I.P. Estate, New Delhi-110001.
2. Joint Commissioner of Police (Training),
1st Floor, Admn. Block,
Police Training College,
Jharoda Kalan, New Delhi-110072
3. Deputy Commissioner of Police/Principal,
Police Training College,
Jharoda Kalan, New Delhi.
...Respondents
(By Advocate: Shri Amit Anand)
2 OA No.14/2018
ORDER
Hon'ble Mr. R.N. Singh, Member (J):
By way of the present OA filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has prayed for the following reliefs:-
"(a) Quash and set aside the impugned orders dated 01/08/2017 and 03/11/2017 placed at Annexure A/1 and A/2 respectively.
(b) Direct the respondents to forthwith reinstate the applicant in service.
(c) Accord all consequential benefits including monetary and seniority benefits.
(d) Award costs of the proceedings; and
(e) Pass any order/relief/direction(s) may deem fit and proper in the interests of justice in favour of the applicant."
2. Pursuant to the notices, the respondents have filed their counter reply. The applicant has filed rejoinder. The learned counsels for the parties have filed their respective written arguments and the learned counsels have also filed certain documents/judgments.
3. We have heard the learned counsels for the parties and perused the pleadings on record, documents and judgments filed by the respondents vide Diary No.8/2024 3 OA No.14/2018 on 2.1.2014 as well as the judgments relied upon by the learned counsel for the applicant.
4. Brief undisputed facts of the case are that the applicant was enlisted as Constable in Delhi Police upon regular appointment w.e.f. 4.4.2006. While the applicant was posted at Police Training College (PTC), Jharoda Kalan, New Delhi on 22.7.2017, a W/Constable, a trainee of Commando Course housed at Barrack No.9 of PTC, Jharoda Kalan made a complaint of sexual harassment against the applicant with the allegations that on the given day between 9 and 10 p.m. when she was resting on her bed and was busy with her mobile phone, she heard her friend's voice discussing about a man, who was standing on the terrace of Ration Store Building in naked position. Then she came out from her room and went straight to her friend's room, which is closer to the Ration Store/PTC. She watched from the window of her friend's room that a man was walking here and there in naked position. There was a half cemented wall covering the terrace. He climbed- up and sat over there and showed them dirty things, his private part and did self sex with his hand. He gave them sign of calling by waving his hand and flying kiss. This 4 OA No.14/2018 incident occurred when it was raining. Some of her friends and others also witnessed the said incident. Her platoon Munshi informed the Warden immediately, who with the help of other staff caught hold of said person. They all were rushed to the Ration Store and the male staff took the person caught to his room and made him to wear clothes. Later on, the person was identified as the applicant. A preliminary enquiry in the alleged incident was got conducted through the ACP-cum-Chairperson, Internal Complaints Committee, PTC, Jharoda Kalan, New Delhi to ascertain the facts. The said Committee obtained the written statement of the complainant, eye witnesses and other staff stated to be present at the time of incident. The said Committee submitted its findings corroborating the sequence of events, as stated by the eye witnesses and other staff and concluded that the delinquent Constable had indulged in grave misconduct of sexual harassment. The said Committee further recommended that a legal action should be taken against the delinquent Constable Sant Ram (applicant). Accordingly, a criminal case on the complaint of the aforesaid Woman Constable (Exe.) vide FIR No.0134/2017 dated 25.7.2017 under Sections 354(A)/294/509 IPC was registered against the applicant 5 OA No.14/2018 at P.S. Baba Haridass Nagar, (initially Outer Distt., Now Dwarka Distt.) New Delhi. For the above misconduct, the applicant was placed under suspension vide Office Order dated 26.7.2017.
4.1 Pursuant to the aforesaid report of the said Committee, the Disciplinary Authority by invoking power under Article 311(2)(b) of the Constitution of India passed the impugned order dated 1.8.2017 (Annexure A/1) dismissing the applicant from service and on a statutory appeals preferred by the applicant, the Appellate Authority rejected the applicant's said appeal vide order dated 3.11.2017 (Annexure A/2). Aggrieved by the impugned orders dated 1.8.2017 and 3.11.2017, the applicant has approached this Tribunal by way of the present OA.
5. The reasons for passing the impugned order dated 1.8.2017 are evident from a few paragraphs of the same, which read as under:-
"On perusal of above sequence of events it became clear that Const. (Exe.) Sant Ram, No.324/PTC has committed most disgusting and condemnable act and lowered the sacred image of the organization in the eyes of public and he has put the entire police force to the shame, especially when such a force is responsible for the safety and security of the women and citizens. What will be fate of the society, if the custodian of law becames law breaker, 6 OA No.14/2018 Being a policeman has conduct has also violently shaken the faith of the citizens from the police force. The act committed by Constable Sant Ram, No.324/PTC is a shameful, abominable, disgusting and the most deplorable act of moral turpitude and unbecoming of a public servant.
Ordinarily a departmental enquiry should be conducted before imposing major punishment including dismissal against the defaulter but the facts and circumstances of the present case and the preliminary enquiry report of Smt. Kusum Sharma, ACP-cum-Chairperson, Internal Complaints Committee, Police Training College, Jharoda Kalan, New Delhi -are such that it would not be reasonably and practicable to conduct a regular departmental enquiry against the defaulter as there is a reasonable belief of threat, intimidation and inducement to the complainant and thereby creating the possibility of tempering of the vital evidence. Therefore, holding a regular departmental enquiry in this case shall create fear in the mind of the complainant, witnesses and discourage her/them from despising against the defaulter during the enquiry. Further, an extended enquiry into the matter would only be caused more trauma to the complainant/victim. Under these given set of compelling circumstances, action under Article 311 (2) (b) of the Constitution of India is invoked against Constable (Exe.) Sant Ram, No.324/PTC in this case.
Hence, considering the -above facts in totality, further retention of Constable (Exe.) Sant Ram, No.324/PTC in police force is undesirable and absolutely unwarranted. Therefore, I Michi Paku, Deputy Commissioner of Police/Principal, Police Training College, Jharoda Kalan, New Delhi, being competent authority hereby dismiss Constable (Exe.) Sant Ram, No.324/PTC (PIS No.28060573) from the Delhi Police force under Article-311(2)(b) of Constitution of India with immediate effect. His suspension period upto the date of Issue of this order is hereby decided as period not spent on duty for all intents and purpose."
(emphasis supplied) 7 OA No.14/2018 The appeal preferred by the applicant had been rejected by the appellate authority vide impugned order dated 3.112017 (Annexure A/2), the operative portion of the same reads as under:-
"I have carefully gone through each point mentioned in the appeal. I have perused the entire file, enquiry conducted by Smt. Kusum Shsarma, ACP-cum-Chairperson, Internal Complaints Committee, Police Training College, Jharoda Kalan, New Delhi and decision taken by the disciplinary authority in the instant case. I have also considered the Appeal submitted by the appellant in the light of facts and circumstances of the case as also other documents available on the file.
In view of the overall facts and circumstances of this case, his delinquency stands proved as established in the enquiry by the Chairperson.
Thus, after considering the overall facts & circumstances of the case and reasons as stated above on the points raised in the appeal, I feel that the punishment awarded by the Disciplinary Authority to the appellant is justified and as such I find no reason to interfere with the order passed by the Disciplinary Authority. Hence, the appeal is, hereby, rejected."
6. During the course of hearing, Shri Luthra, learned counsel for the applicant has submitted that the applicant's case is squarely covered by the order of this Tribunal on the similar issue in TA No.44/2015, titled Anit Kumar vs. Govt. of NCTD and others vide 8 OA No.14/2018 Order/Judgment dated 28.4.2022 and in OA No.1383/2020, and a Batch, in the case of Ct. Sumit Sharma vs. Govt. of NCT of Delhi and others, etc., vide common Order/Judgment dated 10.2.2022. Accordingly, learned counsel for the applicant has submitted that the present OA may also be decided on the same terms as in the case of Anit Kumar (supra) and in that of Ct. Sumit Sharma (supra) by this Tribunal. He has submitted that in the instant case also the disciplinary authority while invoking the provision of Article 311(2)(b) of the Constitution of India has acted in an illegal manner and has violated the set principles and departmental instructions issued by C.P., Delhi in such matters. As such the punishment order is illegal and unconstitutional and hence not tenable in the eyes of law.
6.1 Shri Luthra, learned counsel, has further emphasized that the disciplinary authority while invoking the power under Article 311(2)(b) of the Constitution of India had illegally dispensed with the departmental enquiry as the appropriate reasons are required to be ascribed and in the absence of the same, the punishment order is vitiated in law as held by the Hon'ble Apex Court 9 OA No.14/2018 in the case of UOI vs. Tulsi Ram Patel, reported in 1983 (3) SCC 398. He has also argued that the impugned orders are outcome of the whims and caprice of the authorities as there was no material on record before the disciplinary authority except the P.E. report which was conducted in violation of Rules on the subject. He has referred to PHQ's circular dated 28.12.1998 in which it has been provided that "the police officers involved in the cases of Rape or Decoity or any such heinous offences hae been dismissed straightway under Article 311(2)(b0 despite the fact that criminal cases have been registered. Such dismissals, without holding DEs, are illegal because in such cases D.E. can be conveniently held." In the said circular, it has further been provided that the disciplinary authority should not take resort to Article 311(2)(b) of the Constitution of India lightly but only in those cases where it is not reasonably practicable to hold the enquiry. Whenever the disciplinary authority comes to the conclusion that it is not reasonably practicable to hold an enquiry, he must record cogent and legally tenable reasons for coming to such conclusion. In the absence of cogent and valid reasons, duly recorded in writing, no such order of dismissal etc. resorting to Article 311(2)(b) 10 OA No.14/2018 can be sustainable in law. The same is the position in the case of the applicant as the reasons, as recorded by the disciplinary authority, quoted above, are in fact no reason in the eyes of law. Shri Luthra has also referred to a similar PHQ's circular dated 11.9.2007. 6.2 Learned counsel for the applicant has also referred to the Order/Judgment dated 16.11.2019 of the learned Trial Court in the criminal case FIR in which the applicant has been acquitted of all the offences alleged therein in the said FIR. By referring to such Order/Judgment, learned counsel for the applicant has submitted that prosecution has examined six witnesses, including the complainant. He has submitted that complainant as well as other witnesses were personnel of Delhi Police and when they could have participated in the investigation conducted by the police and deposed before the learned Trial Court as prosecution witnesses, nothing has been recorded by the respondents as to how they could not have participated in the departmental enquiry.
6.3 In the brief synopsis filed on behalf of the applicant, it has been pleaded that the impugned orders are passed in violation of law laid down by the Hon'ble Apex Court in 11 OA No.14/2018 the case of Tulsi Ram Patel (supra) as well as various Orders/Judgments of this Tribunal in the OAs, referred to therein in the brief synopsis. However, learned counsel for the applicant has heavily relied on the common Order/Judgment of this Tribunal in Ct. Sumit Sharma (supra) stating that the judgments of the Hon'ble Apex Court referred to in the brief synopsis and those of this Tribunal referred to in the brief synopsis have extensively considered by this Tribunal in the said case of Ct. Sumit Sharma (supra).
6.4 Shri Luthra, learned counsel, has drawn our attention to Section 11 of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, which reads as under:-
"11. Inquiry into complaint.-(1) Subject to the provisions of section 10, the Internal Committee or the Local Committee, as the case may be, shall, where the respondent is an employee, proceed to make inquiry into the complaint in accordance with the provisions of the service rules applicable to the respondent and where no such rules exist, in such manner as may be prescribed or in case of a domestic worker, the Local Committee shall, if prima facie case exist, forward the complaint to the police, within a period of seven days for registering the case under section 509 of the Indian Penal Code (45 of 1860), and any other relevant provisions of the said Code where applicable:12 OA No.14/2018
Provided that where the aggrieved woman informs the Internal Committee or the Local Committee, as the case may be, that any term or condition of the settlement arrived at under sub- section (2) of section 10 has not been complied with by the respondent, the Internal Committee or the Local Committee shall proceed to make an inquiry into the complaint or, as the case may be, forward the complaint to the police:
Provided further that where both the parties are employees, the parties shall, during the course of inquiry, be given an opportunity of being heard and a copy of the findings shall be made available to both the parties enabling them to make representation against the findings before the Committee.
(2) Notwithstanding anything contained in section 509 of the Indian Penal Code (45 of 1860), the court may, when the respondent is convicted of the offence, order payment of such sums as it may consider appropriate, to the aggrieved woman by the respondent, having regard to the provisions of section 15.
(3) For the purpose of making an inquiry under sub-section (1), the Internal Committee or the Local Committee, as the case may be, shall have the same powers as are vested in a civil court the Code of Civil Procedure, 1908 (5 of 1908) when trying a suit in respect of the following matters, namely:--
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of documents; and
(c) any other matter which may be prescribed.
(4) The inquiry under sub-section (1) shall be completed within a period of ninety days."
6.5 On the strength of the aforesaid Section 11 of the Act ibid, Shri Luthra has argued that dismissal of the applicant by invoking the provision of Article 311 (2) (b) of 13 OA No.14/2018 the Constitution of India by the disciplinary authority is not sustainable in the eyes of law as it is specifically provided in the said Section that inquiry into such type of complaint in accordance with the provisions of the service rules applicable to the respondents has to be initiated. Shri Luthra, has also submitted that as per Rules, in the P.E., the delinquent should have been given an opportunity to give his version about the allegations and there is no bar to record his statement in the PE proceedings, however, in the instant case, the applicant was not even called to know about the allegations levelled by the Woman Constable. The conclusion drawn in the P.E. report is against the rules and instruction on the subject.
7. On the other hand, Shri Anand, learned counsel for the respondents has drawn our attention to the averments made in the pleadings, the documents and judgments filed on behalf of the respondents and has argued that the applicant while working in a discipline force has been involved in disgusting act towards the female employees of the respondents. Such act of the applicant has been found by the competent authority as to have not only lower the 14 OA No.14/2018 image of the organization and which has also shaken the faith of public at large in the police force. He has added that the competent authority also reached to the conclusion that the applicant was likely to intimidate the complainant and likelihood of tempering of vital evidence was found possible at the end of the applicant. He has argued that on being satisfied to this effect, the competent authority has rightly invoked its jurisdiction under Article 311 (2)(b) of the Constitution of India and therefore, interference in the impugned orders by this Tribunal while exercising the power of judicial review is not warranted. To buttress the respondents' stand, as taken in the counter reply that the orders passed by the disciplinary and appellate authorities are legally sustainable, he has relied upon the following judgments:-
(i) Tulsi Ram Patel (supra);
(ii) J. Mohapatra & Co and another vs State Of
Orissa and another, reported in 1985 SCR (1) 322;
(iii) Judgment of the Hon'ble Supreme Court dated 22.4.2022 in the case of Anit Kumar Upadhyay vs. The Director General, SSB & others in Civil Appeal No. 2707/2022; 15 OA No.14/2018
(iv) Judgment of the Hon'ble Supreme Court dated 30.9.1996 in the case of Avinash Nagra vs. Navodaya Vidyalaya Samiti and others in Civil Appeal No.14525/1996;
(v) Judgment of the Hon'ble Supreme Court dated 2.5.2003 in the case of Navodaya Vidyalaya Samiti and others vs. Babban Prasad Yadav and another in Civil Appeal No.4247/2003;
(vi) Judgment of the Hon'ble Supreme Court dated 16.9.1996 in the case of Kaldip Singh vs. State of Punjab and others in Civil Appeal No.12313/1996;
(vii) Judgment of the Hon'ble Supreme Court dated 3.12.2021 in the case of Union of India and others vs. Mudrika Singh in Civil Appeal No.6859/2021;
(viii) Judgment of the Hon'ble High Court of Karnataka at Bengaluru dated 15.6.2022 in the case of Vikas Verma and others vs. Union of India and others in W.A. No.5651/2017 and other connected cases;
(ix) Judgment of the Hon'ble Bombay High Court dated 14.6.2010 in the case of Shri Premchand Balaram Pardeshi vs. State of Maharashtra and others in Writ Petition No.6525/2002;
(x) Judgment of the Hon'ble Punjab and Haryana High Court dated 6.4.2022 in the case of Anil Kumar vs. State of Haryana and others in LPA No.719/2014;
(xi) Judgment of the Hon'ble Punjab and Haryana High Court dated 21.3.2023 in the case of Hira Lal vs. Union of India and others in CM No.6057/2012 in RA No.28/2022;
16 OA No.14/2018
(xii) Judgment of the Hon'ble Delhi High Court dated 2.2.2023 in the case of Manohar Lal vs. Commissioner of Police and others in WPC No.1309/2023'
(xiii) Judgment of this Tribunal dated 29.11.2022 in the case of Manohar Lal vs Commissioner of Police and others in OA No.744/2020; and
(xiv) Judgment of the Hon'ble Deli High Court dated 1.11.2022 in the case of Commissioner of Police and others vs. Dharambir Singh in WPC No.15073/2022.
8. Shri Anand, learned counsel for the respondents, has further argued that otherwise also the applicant has admitted the alleged delinquency by way of his statement dated 22.7.2017 before the Inspector/day Officer. In support of his argument, he has placed reliance on the judgment of the Hon'ble Supreme Court in the case of Kuldip Singh vs. State of Punjab and another, reported in 1996 (10) SCC 659.
9. Shri Luthra, learned counsel for the applicant in rejoinder has disputed the arguments advanced on behalf of the respondents. He has submitted that no material has been available before the competent authority which could have led to the conclusion that regular inquiry was not possible in the matter. There has been no evidence of any intimidation and threat by the applicant to the 17 OA No.14/2018 complainant and/or to any of the prosecution witnesses. There has been no document or material available before the competent authority to indicate likelihood of tempering with the evidence by the applicant. He has added that there has been material difference between the allegations leveled against the applicant on 22.7.2017, i.e., the date of the alleged incident and the allegations as recorded on 25.7.2017 when the chairperson of the internal complaint committee in the matter has submitted the report. He has argued that the alleged admission by the applicant is no admission in the eyes of law in as much as the same is vague, does not refer to the allegations for which the applicant has been punished. He has reiterated that the gravity of the allegations cannot be a ground to invoke the provisions of Article 311 (2)(b) of the Constitution of India in as much as a regular inquiry is the rule whereas dispensing the same is exception. He has added that as per law dispensing with the inquiry is permissible only in exceptional circumstances and such exceptional circumstances are required to be reduced in writing either in the order of penalty and/or on the file on the basis of the material available in this regard and the same cannot be on the basis of surmises, conjunctures, whims and 18 OA No.14/2018 fancies. He has further argued that the circulars of the respondents have been issued only keeping in view the law on the subject as a matter of conscious policy decision and, therefore, violation of the trite law on the subject as well as the policy decision of the respondents and the same shall vitiate the order(s) of the penalty passed by invoking the provisions of Article 311(2)(b) of the Constitution of India.
10. We have considered the submissions made by the learned counsels for the parties. On perusal of the instructions relied and referred to by the applicant, it is apparent that the same has been issued by the respondents keeping in view the provisions of Article 311(2)(b) of the Constitution of India as well as the judgments of this Tribunal, the Hon'ble High Court as well as the Hon'ble Supreme Court and the law laid down by the Hon'ble Apex Court in the case of Tulsi Ram Patel (supra) has also been considered while issuing the said circulars. Moreover, the said circulars have been considered by this Tribunal in the case of Ct. Sumit Sharma (supra). Accordingly, here the said circulars need no detail consideration.
19 OA No.14/201810.1 We have also gone through the statement dated 22.7.2017 of the applicant which is claimed as admission of guilt by the applicant. However, we find that the same is vague and not before the competent authority with reference to the allegations leveled against him. In this background, we are of the considered view that the same is no admission in the eyes of law. Accordingly, the judgment of the Hon'ble Apex Court in the case of Kuldip Singh (supra) referred and relied on behalf of the respondents is of no help to the respondents. It is not in dispute the law laid down by the Hon'ble Apex Court in Tulsi Ram Patel (supra) has been relied on behalf of the applicant and also on behalf of the respondents. Moreover, the same along with other judgments of this Tribunal/Hon'ble Court(s) has also been considered by the respondents themselves while issuing the circulars under reference. Further the judgment of the Hon'ble Apex Court in the case of Tulsi Ram Patel (supra) has not only been considered by the respondents while issuing the circulars under reference but has extensively been considered by this Tribunal, by the Hon'ble High Court(s) and by the Hon'ble Apex Court in various judgments referred to in the 20 OA No.14/2018 case of Ct. Sumit Sharma (supra). Accordingly, the same needs no further discussion.
10.2 The judgment of the Hon'ble Apex Court in the case of Babban Prasad Yadav (supra) has also been considered by this Tribunal in the case of Anit Kumar (supra) and therefore, the same needs no detail consideration herein. 10.3 In the case of Anil Kumar Upadhyay (supra), the Hon'ble Apex Court has held that the learned Single Judge did not appreciate that the misconduct committed by the delinquent official, being a male Head Constable cannot be equated with the misconduct committed by the female constable and the Hon'ble Apex Court has recorded that the learned Single Judge committed a grave error in comparing the case of female constable with that of delinquent, male Head Constable. The Hon'ble Apex Court ruled that merely because one of the employees was inflicted with a lesser punishment cannot be a ground to hold the punishment imposed on another employee as disproportionate. As such this judgment of the Hon'ble Apex Court does not support the stand taken by the respondents.
21 OA No.14/201810.4 In the case of Avinash Nagra (supra), the Hon'ble Apex Court has recorded the admitted position that the complainant was an active participant in cultural activities and taking advantage thereof, the appellant, a Post Graduate Teacher, misused his position and adopted sexual advances towards her. When she ran away from his presence, he persued her to the room where she locked herself inside; he banged the door. In such circumstances, the Hon'ble Apex Court ruled that it is very hazardous to expose the young girls for tortuous process of cross-examination. Thus, it is apparent that facts and circumstances in the case of Avinash Nagra (supra) were different than those in the case in hand. Therefore this judgment is of no help to the stand taken by the respondents.
10.5 The case of Babban Prasad Yadav (supra), as recorded herein above, has been considered by this Tribunal in Anit Kumar (supra). Moreover, keeping in view the law laid down by the Hon'ble Apex Court in Avinash Nagra (supra) as well as the facts and circumstances of the case, which were found to be in a situation in which the impugned order was passed 22 OA No.14/2018 keeping in view the report of the committee which was submitted after affording opportunity to the respondent therein and after considering his defence in the matter, which is not the situation in the case in hand. Thus, this judgment does not help the stand taken by the respondents.
10.6 In the case of Mudrika Singh (supra), the complainant, a Constable, made a complaint of sexual harassment against the respondent, who was Head Constable and her superior and in this regard, SSFC convened at the Headquarters for enquiring into the charge under Section 24(a) of the BSF Act, 1968. The respondent was given an opportunity to participate in the said inquiry. The respondent pleaded not guilty to the charge. Prosecution witnesses were examined and the respondent - delinquent was furnished with an opportunity to cross examine and to call for defence witnesses. Such are not the facts and circumstances of the case in hand. Accordingly, this judgment also is of no assistance to the stand taken by the respondents. 10.7 We have also gone through the judgment of the Hon'ble High Court of Karnataka at Bengaluru in the case 23 OA No.14/2018 of Vikas Verma and others (supra). In this case, the Hon'ble High Court has ruled that the subsequent acquittal of the appellants in a criminal case is of no assistance to the appellants as decision in Capt. M Paul Anthony vs. Bharat Gold Mines Ltd., and another, reported in (1993) 3 SCC 679 was explained by Supreme Court in 'Union of India and Ors. Vs. Seetharam Mishra and Anr.', (2019) 20 SCC 588, wherein it has been held that acquittal in the course of criminal trial cannot operate ipso facto as a ground for vitiating the finding of misconduct which has been arrived at during the course of disciplinary proceeding. As already recorded hereinabove, the applicant has not challenged the impugned order in the present OA on the ground that he has subsequently been acquitted in the concerned criminal case FIR. He has referred to the order of the competent Court regarding his acquittal in the criminal case FIR only to demonstrate that witnesses came forward to depose in the said criminal case FIR and, therefore, in absence of any proved deterrence, the respondents cannot come to the conclusion that departmental inquiry was not reasonably practical in the matter. Accordingly, this 24 OA No.14/2018 judgment also is of no help to the stand taken by the respondents.
10.8 So far the judgment of the Hon'ble High Court of judicature at Bombay in the case of Shri Premchand Balaram Pardeshi (supra) is concerned, the gravamen of the allegations against the petitioner was his collusion with one Jinda and Sukha, who were dreaded terrorists, and at the relevant time incarcerated in the Yerowada Jail as they were the main accused in a criminal case. In view of the facts and circumstances of the case and since the said terrorists have prime role to play in the inquiry initiated against the petitioner and the disciplinary authority has recorded his subjective assessment in the order to hold an inquiry against the petitioner and by that time, the said terrorists were hanged pursuant to their conviction. Accordingly, we are of the considered view that this judgment does not support the stand of the respondents.
10.9 We have also gone through the judgment of the Hon'ble Punjab and Haryana High Court in the case of Anil Kumar (supra). In this case, the report was received from the District Education Officer with the statements of 25 OA No.14/2018 the girls who were two sisters that the appellant - Anil Kumar, who was the Hindi Teacher had raped the elder one on 16.02.2010 and 19.02.2010 and outraged the modesty of the younger girl and the girls were studying in Class-X and VIII. In view of the facts and circumstances of the case, the judgment of the Apex Court in the case of Babban Prasad Yadav (supra), the Hon'ble High Court has ruled that if the argument of counsel for the appellant was trusted, it would amount to the girls being put through another round of embarrassing situation, which would lead to further humiliation of an incident that had taken place a decade earlier. In this background, the Hon'ble High Court has ruled in para 14 as under:-
"14. If the argument of counsel for the appellant is now to be accepted, it would amount to the girls being put through another round of embarrassing questions, which would lead to further humiliation of an incident that had taken place a decade earlier. The scales of justice can never be so insensitive as not to allow the ugly scars of the unfortunate incident to ever heal. In such circumstances, this Court is of the considered opinion that the view taken by the Coordinate Bench in Balbir Singh's case (supra) would also be fully applicable to the facts and circumstances of the present case."
We find that such is not the situation in the case in hand, in as much as in the present case, the complainant is 26 OA No.14/2018 woman police personnel and all the prosecution witnesses are police personnel and many of them are higher in rank than that of the applicant as well as that of the complainant. The complainant as well as such witnesses had deposed in the said criminal case FIR and nothing has been brought on record to show that they were so much terrorized or threatened that it was not found practical for them to come forward to depose against the applicant in the departmental enquiry. Accordingly, we find this judgment as well of no help to the stand of the respondents.
10.10. We have also gone through the judgment of the Hon'ble High Court of Punjab and Haryana in the case of Hira Lal (supra). In the said case, appellant /plaintiff was reruited as Constable in the Central Reserve Police and in the year 1999, a chargesheet was issued to the appellant/plaintiff under the CRPF Act alleging two allegations. The inquiry was also conducted and both the allegations were proved against the appellant/plaintiff by the inquiry officer. In the case in hand, no inquiry has been conducted and in the alleged preliminary inquiry, the applicant has not been afforded opportunity to participate. 27 OA No.14/2018 As such the facts and circumstances of the case in hand are entirely different than those in the case of Hira Lal (supra). Therefore, the judgment of the Hon'ble High Court of Punjab and Haryana in the case of Hira Lal (supra) does not help the stand of the respondents. 10.11 We have also gone through the judgment of the Hon'ble High Court of Delhi in the case of Manohar Lal (supra). In the said case, while dismissing the Writ Petition, the Hon'ble High Court ruled in para 15 as under:-
15. We are of the view that the learned Tribunal is justified in dismissing the petition for the reasons stated as under:
(i) The charges against the petitioner are of very serious nature.
(ii) The allegations which had already been reproduced above is that the petitioner, who was holding the position of constable along with two Sub-Inspectors posted in the Special Cell of Delhi Police forcibly entered into a godown by breaking open the room where sandalwood logs were kept and loaded approx. 1355 Kg. of sandalwood logs into a tempo and took away the SIM card from the mobile phone of Guard Maniram.
(iii) That apart during the preliminary inquiry it transpired that the complainant / witness of the case was severely traumatised by this egregious act of criminals, especially the police personnel involved therein due to 28 OA No.14/2018 their close association with hardened criminals.
(iv) A charge sheet has been filed against the petitioner in connection with FIR No.390/2017 registered at PS Bhalswa Dairy, showing a prima facie case against the petitioner.
(v) In the appeal filed by the petitioner, he has not denied that he is not involved in the alleged offence.
(vi) Insofar as the plea of the learned counsel for the petitioner that there is another witness, i.e. the nephew of the guard namely Mohit is concerned, we note that the FIR records that the guard Maniram and his nephew Mohit were cooking food when he heard a knock at the door, pursuant to which Maniram opened the door to see a person in a police uniform. Further, it records that at 06:45 A.M. on the next day when the contractor had reached the premises, the guard's nephew Mohit arrived and stated that he had slept on the terrace of another godown, on being scared of the men who had come wearing police uniform.
Suffice to state, the nephew of the guard being a child of 11 years upon being scared of the men in police uniform, had left the godown and went to the terrace of another godown. If that is indeed the case, it is not known as to how much weight his deposition may carry. That apart, there may arise an apprehension that the charged persons including the petitioner being police officer who are well versed in criminal proceedings, may try to intimidate or influence this witness as well, more so, when he is a minor."
29 OA No.14/2018We find that in the case of Ct. Sumit Sharma (supra), the cases of allegations of more serious nature were considered. It is not the case in hand that the complainant or the witnesses were traumatized. In the said case FIR, the applicant has been acquitted after considering the depositions made by the prosecution witnesses. No proof of any intimidation or act of influencing the witnesses has been brought before the competent authority. As such the judgment of the Hon'ble High Court in the case of Manohar Lal (supra) does not support the stand of the respondents rather the same supports the stand of the applicant.
11. After considering the relevant material on the subject, including circulars dated 28.12.1993 and 11.9.2007, and the case law, this Tribunal has considered the similar issue while deciding a batch of cases, OA No.1383/2020 and others, titled Ct. Sumit Sharma vs. Govt. of NCT of Delhi and others, etc., vide common Order/Judgment dated 10.2.2022, of which paras 31, 32 and 45 to 47 read as under:-
"31. It is not that the issue of invoking the provisions of Article 311(2)(b) of the Constitution of India came for consideration before the Hon'ble Apex Court in the aforesaid cases or any other 30 OA No.14/2018 cases before other Court(s) and/or Tribunal(s) only but the same had attracted the attention of the respondents themselves as well and the respondents have themselves emphasized that the Disciplinary Authority should not take resort to Article 311(2)(b) of the Constitution of India lightly but only in those cases where it is not reasonably practicable to hold the inquiry. The same is evident from the circular dated 21.12.1993 (Annexure A/10 to OA 467/2020) of the respondents, which reads as under:-
"The Police Officers involved in the case of rape or dacoity or any such heinous offence have been dismissed straightway under Article 311(2)(b) despite the fact that criminal cases have been registered. Such dismissals without holding D.Es are illegal because in such cases D.E. can be conveniently held.
It is, once again emphasized that the Disciplinary Authority should not take resort to Article 311(2)(b) lightly but only in those cases where it is not reasonably practicable to hold the enquiry. Whenever the disciplinary authority comes to the conclusion that it is not reasonably practicable to hold an enquiry he must record at length cogent and legally tenable reasons for coming to such conclusion. In the absence of valid reasons, duly reduced in writing, no such order of dismissal etc. with resort to Article 311(2)(b) can be sustainable in law."
32. The issue regarding application of the provisions of Article 311(2)(b) of the Constitution of India came before the Hon'ble Apex Court in various cases and the law stands settled by the Apex Court in the Constitution Bench decision in Tulsiram Patel (supra), the similar issue came before the Hon'ble Apex Court, the Hon'ble High Court(s) and the Tribunal(s) in many cases thereafter and after considering the issue at 31 OA No.14/2018 length, this Tribunal had made observation as in para 20 of the Order/Judgment dated 5.6.2007 in the case of Suresh Kumar (supra), noted in paragraph 16 hereinabove. The issue of termination/dismissal of the services of various employees attracted the attention of the respondents themselves. The respondents, after considering the provisions of Article 311(2)(b) of the Constitution of India and the judgment of the Hon'ble Apex Court in the case of Tulsiram Patel (supra) and the Order(s)/Judgment(s) passed by this Tribunal have issued another circular dated 11.9.2007 (Annexure A/13 of the rejoinder filed in OA 467/2020). In the said circular, they have emphasized that the disciplinary authority should pass a speaking order(s) based and supported by material/facts on record for dispensing with prior inquiry and before passing such order(s), the disciplinary authority should be satisfied that it is not practicable to hold an inquiry in view of threat, inducement, intimidation, affiliation with criminals etc. and the disciplinary authority has no option but to resort to Article 311(2)(b) of the Constitution of India. The said circular dated 11.9.2007 reads as under:-
"CIRCULAR No. /2007 An analysis has been done by PHQ in 38 cases pertaining to the period between 1.1.2000 to 31.12.05 where action under Article 311 (2) (b) of the Constitution of India was taken against the defaulters. The analysis shows that out of the 38 cases, the action of the department has been upheld by CAT only in two cases and out of these two cases and only one case action was upheld by the Hon'ble High Court of Delhi and most of these cases have been remanded back in the Department by the Tribunal for initiating departmental inquiry. Though some cases are still pending in the Hon'ble High Court for decision, in a majority of cases, Disciplinary Authorities 32 OA No.14/2018 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 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""
"45. In the cases in hand, it is evident that in most of the cases preliminary inquiry had admittedly been done and regular enquiry had been dispensed with on the ground of possibility of witnesses likely to be unduly harassed or pressurized by the delinquent(s). In all the case 33 OA No.14/2018 FIRs, chargesheet had been filed, list of witnesses had been filed, a few witnesses had been examined or after tiral the accused(s) had been acquitted. In a few cases, the reason for dispensing with the enquiry had been given that the material had come on record to prove the criminal acts of the applicants. The reason had been also of threat to discipline, integrity and morality of the entire police force. On perusal of the impugned orders, it is evident that either the authorities have passed the orders of dispensing with the enquiry on jumping to the conclusion that delinquency or guilt of the applicants as alleged in the case FIRs stood proved even without regular enquiry in the departmental proceedings or trial in the concerned learned court(s). In most of the cases, conclusion about delinquency and commission of the offence(s) by the applicant(s) had been arrived merely on the basis of the preliminary inquiry report/investigation conducted by them and a copy of which had not been provided to them. In none of the aforesaid cases, there was any evidence/material before the authorities as evident from the impugned orders nor as such had been brought before us, to indicate that the applicants were having terror in their area and/or were having link with the terrorist(s) and they were involved in any case of espionage. Nothing has been recorded in the order(s) or shown to us that the applicant(s) had ever threatened or harassed any of the witness(es) and/or the prospective witness(es). There is no evidence or document to indicate that in view of the facts and circumstances of the case(s), any efforts was made to summon the witness(es) to lead the evidence against the applicant(s) or anything was found that on regular enquiry or by summoning the witness(es) the relation with foreign countries was likely to be adversely affected. In the impugned order(s), the respondents have not disclosed that any effort was made by them to conduct the enquiry nor there is any evidence that in spite of their efforts, they had not been able to produce the witness(es) 34 OA No.14/2018 to lead evidence against the applicant(s). Rather the respondents have themselves filed the final challan(s) with a list of witness(es) before the concerned learned Court(s) and in a few cases, the accused(s) had been acquitted as well. In a few cases, witnesses have been examined before the concerned learned Court(s). Moreover, co- delinquent in the cases of Neeraj Kumar (supra) and Ramesh Kumar (supra), the similar impugned orders have been set aside by the Tribunal and the orders of the Tribunal have also attained finality.
46. It is found that the authorities while passing the impugned orders have very casually come to the conclusion that it would not be possible to conduct the departmental enquiry against the delinquent(s) and there being a possibility that witness(es) may not come forward to depose against the applicant(s). Such acts/orders of the respondents are not only in violation of the settled law but also of their own aforesaid circulars dated 21.3.1993 and 11.9.2007 as well. Hence, we are of the considered view that reasons given by the respondents for dispensing with the enquiry are not in consonance with the law settled by the Hon'ble Supreme Court and Hon'ble High Courts and followed by this Tribunal in a catena of cases, a few of which cases are referred to hereinabove.
47. It cannot be in dispute that there must be zero tolerance towards corruption and misconduct in public service. However, without there being sufficient ground(s) to be recorded in writing, the protection given to the public servant of hearing under Article 311 of the Constitution cannot be taken away by the respondents. Our view is supported by the binding judicial precedents, referred to hereinabove."
12. A catena of cases of the Orders/Judgments of the Hon'ble Supreme Court, Hon'ble High Court of Delhi and 35 OA No.14/2018 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).
13. 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 the respondents 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 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 36 OA No.14/2018 regard to the finding that the applicant is guilty of committing grave misconduct and was involved in the aforesaid offence. Even in such cases, Section 11 of the Act ibid provides that inquiry into the alleged complaint has to be initiated against the applicant in accordance with the rules on the subject before arriving at any final conclusion in the matter.
14. 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 the respondents' 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.
15. 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 Order/Judgment dated 10.2.2022 in Ct. Sumit Sharma (supra) and a batch of cases. Therefore, the present OA 37 OA No.14/2018 deserves to be partly allowed and hence, the same is partly allowed with the following directions:-
(i) Orders dated 01.08.2017 (Annexure A/1) and dated 3.11.2017 (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.
16. However, in the facts and circumstances, there shall be no order as to costs.
(Sanjeeva Kumar) (R.N. Singh)
Member (A) Member (J)
/ravi/