Central Administrative Tribunal - Delhi
Ved Prakash vs Gnctd on 23 August, 2024
1
OA No.1216 /2024
Court No.2 (item No.43)
Central Administrative Tribunal
Principal Bench
OA No. 1216/ 2024
Reserved on:06.08.2024
Pronounced on : 23.08.2024
Hon'ble Mr.R.N. Singh, Member (J)
Hon'ble Mr. Rajinder Kashyap, Member (A)
ASI Ved Prakash
Age 55 years
S/o Sh. Govind Singh
VPO - RZD-1/256-C, Street No. 5,
Mahavir Enclave, Dabri -
Palam Road, New Delhi- 110045
Mobile No.: 9136113517,
Email: sourabhdalal1(@gmail.com
Sub.; Dismissal
Group C:
-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.
3. The Joint Commissioner of Police
Western Range, Delhi
Through the Commissioner of Police
Jai Singh Road New Delhi.
2
OA No.1216 /2024
Court No.2 (item No.43)
4. The Deputy Commissioner of Police
Dwarka District, New Delhi
Through the Commissioner of Police
Jai Singh Road, New Delhi
-Respondents
(Through Advocate: Mr.U. Srivastava)
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 quash and set aside order dated 25.10.2022 whereby the extreme punishment of dismissal from service is inflicted upon the applicant by invoking the power under Art. 311(2)(b) of Constitution of India and the order dated 23.02.2024 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 that 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 Applicant. The applicant has also filed his 3 OA No.1216 /2024 Court No.2 (item No.43) rejoinder denying the contentions of the counter affidavit and reiterated his claim in the OA.
3. The brief facts of the present case are that the applicant was initially appointed as Constable in Delhi Police in the year 1988. He was promoted to the rank of Head Constable (Exe,) and finally promoted as ASI (Exe.) in the Special Grade on 12.09.2017. The applicant states that he has unblemished service record as he has received 65 commendable certificates including the cash reward for rendering services under the respondents. He also mentioned that he is the sole bread winner of his family which is majorly 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. RC0032022A00058 dated 21.09.2011 Under Section 7 of Prevention of Corruption Act PS of CBI, ACB, New Delhi by CBI/ACB, New Delhi. He was arrested on 22.09.2022 and was granted bail on 19.10.2022.
The applicant was placed under suspension on 22.09.2022. A preliminary enquiry was conducted 4 OA No.1216 /2024 Court No.2 (item No.43) against the applicant by ACB/ Prevention of Corruption Cell ( Shri Ravinder Kumar). The applicant contends that report of the preliminary enquiry was never supplied to him. He further states that the Disciplinary Authority issued an order on 25.10.2022 whereby the applicant was dismissed from service by invoking the power of 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 Disciplinary Authority issued on 25.02.2022 reads as under:-
"The team of ACB, CBI, Lodhi Road, Delhi laid a trap at around 1.15 P.M. and ASI (Exe.) Ved Prakash, while he was on MPV duty from 08.00 AM to 04.00 P.M., called Mr. Bijender near Bakkargarh More, Dhansa-Najafgarh Road, approached Mr. Bijender in his car and accepted Rs.50,000/-. CBI team trapped him and recovered the bribe money which was given to hím by Mr. Bijender. A case vide FIR No, RC 0032022A0058 dated 21.09.2022, u/s 7 PC Act PS CBI. ACB. New Delhi was registered against ASI (Exe.) Ved Prakash, No.556/DW (PİS No.28881761) and he has been arrested by CBI ACB Team in he case on 22.09.2022.5 OA No.1216 /2024
Court No.2 (item No.43) For the above misconduct the ASI was placed under suspension vide this office order 17803- 23/HÄP/P-İI/DWD, dated 22.09,2022.
For the sake of justice and as per Vigilance Circular circulated vide Endst. No.5545- 645/P.Cell/Vig. Dated 11.09.2007, a P.E has been ordered vide this office order No.1782/HAP (P-
11)/DWD dated 22.09.2022 and entrusted to Sh.
Ravínder Singh, ACP/PG Cell/DWD.
Sh. Ravinder Kumar, ACP/PG Cell has conducted the PE and submitted his enquíry report, which concluded that ASI Ved Prakash,No.556/DW had demanded bribe of Rs.50,000/- as undue advantage from the complainant for settling the complaint against him and he accepted Rs. 50,000/- from the complainant. The CBI Team has recovered the bribe money given to him by Mr. Bijender Singh and arrested him. A case FIR No. RC 0032022A0058 dated 21.09.2022, u/s 7 PC Act PS CBI, ACB, New Delhi was registered against ASI (Exe.) Ved Prakash, No.556/DW (PIS No.28881761) and he solely has done this misconduct. The police officer is a government servant and it is expected from him that he should
(i) maintain absolute integrity, (ii) do his duty with devotion: and (iii) do nothing which is unbecoming of Government servant. The act done by the ASI is a grave misconduct, which unbecoming of a police officer.
Whereas, necessary concurrence of worthy Spl.C.P/L&O/Zone-ll has been sought to invoke Articles 311 (2) (b) of the Constitution of India upon ASI Ved Prakash, No. 556/DW in light of Circular No.2513-2612IP.Cell. (P.Misc.)/Vigilance dated 18.04.2018 and the Special Commissioner of Police, Law and Order, Zone-lI, Delhi has expressed his concurrence that case is fit to invoke Articles 311 (2) (b) of the Constitution of India upon ASI Ved Prakash, No. 556/DW.
The involvement of ASI Ved Prakash, No. 556/DW, shows his criminal propensity and 6 OA No.1216 /2024 Court No.2 (item No.43) immoral attitude. He being member of disciplined force is responsible for protecting the society and citizens of this country from immoral and disreputable activities, but instead of discharging his duty ethically and sincerely, he has not only tarnished the, image of Delhi Police but also have rudely shaken the faith of the citizens of the entire police force, who is supposed to be their protectors. He has acted in a most reprehensible manner, which is never expected from the members of a disciplined force and which is undoubtedly extremely prejudicial to the personal safety and security of society at large.
Whereas, the involvement of ASI Ved Prakash, No. 556/DW in such a shameful activity has eroded the faith of common people in the police force and his continuance in force is likely to cause further irreparable loss to the functioning and credibility of Delhi Police. The defaulter ASI has, acted in a manner highly unbecoming of a police official.
Whereas after such act of serious misconduct, if the defaulter ASI is allowed to continue in the police force, it would be detrimental to public interest. The facts and circumstances of the çase are such that it would not be reasonable practicable to conduct regular departmental enquiry against the defaulter ASI as there is a reasonable belief that no witness/complainant would come forward to depose against him.
Whereas, in the backdrop of the position explained in the foregoing paras, it is clear that ASI (Exe.) is a public servant with a criminal bent of mind and there is every possiblity that no witness/complainant would come forward to depose against him in case a departmental enquiry is initiated against him. Under these sets of compelling circumstances, Articles 311 (2) (b) of Constitution of India is invoked in this case. lt would be in the interest of general public and society as well as for the establishment of rule of law.
7OA No.1216 /2024 Court No.2 (item No.43) Therefore, I M. HARSHA VARDHAN, IPS, Deputy Commissioner of Police, Dwarka Distt., New Delhi do hereby DISMISS defaulter ASI (Exe.) Ved Prakash, No.556/DW (PIS No.28881761) from the service with immediate effect under Articles 311 (2)(b) of Constitution of India. His suspension period w.e.f. 22.09.2022 to the date of issue of this order is treated as period "Not spent on duty" for all intents and purposes."
4. Aggrieved by the aforesaid impugned order dated 25.10.2022, the applicant made an appeal on 21.11.2022. The Appellate Authority vide its order dated 23.02.2024 rejected the appeal. The applicant contends that the appeal has been rejected on arbitrary grounds. Thus, making the order bad in law. For facility of reference, it would be appropriate to mention relevant portion of Appellate -order which reads as follows:-
"A P.E. was ordered vide order No.1782/HAP/P- II/DWD dated 22.09.2022 and entrusted to Sh. Ravinder Singh, ACP/P.G. Cell/DWD. Sh. Ravinder Kumar, ACP/PG Cell had conducted the PE and submitted the enquiry report, which concluded that the appellant had demanded bribe of Rs.50,000/- as undue advantage from the complainant for settling the complaint against him and he accepted Rs.50,000/- from the complainant.The CBI Team had recovered the bribe money given to him by Mr. Bijender Singh and arrested him. A case FIR No. RCO032022A0058 dated 21.09.2022, u/s 07 PC Act PS CBI, ACB, New Delhi was registered against the appellant and he solely was done this 8 OA No.1216 /2024 Court No.2 (item No.43) misconduct. The police officer was a government servant and it was expected from him that he shouid (i) maintain absolute integrity, (ii) do his duty with devotion: and (iii) do nothing which was unbecoming of Government servant. The act done by the appellant was a grave misconduct, which unbecoming of a police officer.
Whereas, necessary concurrence of worthy Spl. CP/L&0/Zone-II was sought to invoke Articles 311(2) (b) of the Constitution of India upon the appellant in light of Circular No.2513- 2612 /P.Cel/ (P.Misc) / Vigilance dated 18.04.2018 and the Special Commissioner of Police, Law & Order, Zone-II, Delhi was expressed his concurrence that case was fit to invoke Articles 311(2) (b) of the Constitution of India upon the appellant.
The involvement of the appellant shows his criminal propensity and immoral attitude. He being member of disciplined force was responsible for protecting the society and citizens of this country from immoral and disreputable activities, but instead of discharging his duty ethically and sincerely, he had not only tarnished the image of Delhi Police, but also had rudely shaken the faith of the citizens of the entire police force, who was supposed to be their protectors. He had acted in a most reprehensible manner, which was never expected from the members of a disciplined force and which was undoubtedy extremely prejudicial to the personal safety and security of society at large.
Whereas, the involvement of the appellant in šuch a shameful activity had eroded the faith of common people in the police force and his continuance in force is likely to cause further irreparable loss to the functioning and credibility of Delhi Police. The appellant had acted in a manner highly unbecoming of a police official. After such act of serious misconduct, if the appellant was allowed to continue in the police force, it would be detrimental to public interest. The facts and circumstances of the case are such that it would not be reasonable practicable to conduct regular 9 OA No.1216 /2024 Court No.2 (item No.43) departmental enquiry against the appellant as there was a reasonable belief that no witness/complainant would come forward to depose against him.
Whereas, in the backdrop of the position explained in the foregoing paras, it was clear that the appellant was a public servant with a criminal bent of mind and there was every possibility that no witness/complainant would come forward to depose against him in case a departmental enquiry was initiated against him. Under these sets of compelling circumstances, Articles 311(2) (b) of Constitution of India was invoked in this case. It would be in the interest of general public and society as well as for the establishment of rule of law. Therefore, the disciplinary authority dismissed the appellant from the service under Articles 311 (2) (b) of Constitution of India. His suspension period w.e.f. 22.09.2022 to the date of issue of this order was also decided as period Not spent on duty" for all intents and purposes, Aggrieved with the order passed by the Disciplinary Authority, the appellant has filed the instant appeal which is within time limit. The copy of order was received by the appellant on 26.10.2022 and he has submitted his appeal on 21.11.2022.
I háve carefully gone through the appeal, the impugned order and material available on record. I have also heard him in O.R. as per principles of natural justice. The appellant pleaded that before taking such a drastic action, the disciplinary authority neither listened to the version of the appellant nor provided the opportunity to put forward his defence combined with reality. His neat, clean and unblemished service record of about 34 years has not been considered and also did not wait for the final outcome of the criminal case. The disciplinary authority did not see the family responsibilities of the appellant and precedence of similar & identical cases in the matter. It would not be wrong to suggest that before taking such a hard decision, no opportunity of defence or putting the version about the real 10 OA No.1216 /2024 Court No.2 (item No.43) facts was provided to the appellant which is prime & basic doctrine of natural justice.
The appellant has further pleaded that the disciplinary authority also did not bother to consider that mere registration of FIR is not sufficient enough to prove the culpability of individual until and unless it is proved by the competent authority. He has further suggested that extreme violation of natural justice has been committed in the present case and it needs to be undone to maintain the true spirit of law. Further while summing-up the chapter, the disciplinary authority did not consider that after registration of the case of PoC Act, countless police personnel are still serving in department have not been dealt with in such discriminatory manner and the facts have been brought at home by initiating regular departmental enquiries. The issue of concern is that the competent authority before taking such drastic action, did not bother to scrutinize the available record where the individuals have been dealt with departmentally and not thrown out, of the department in such a manner as done in the case of appellant.
The appellant has further added that FIR lodged against him by itself is not a substantive piece of evidence and where allegations made in the FIR were not substantiated at the trial by any oral evidence. Hence debarring from the department in such a manner on the basis of registration of FIR is completely against the tenets of natural justice. The appellant has also highlighted his good work during his 34 yēarş of service in the-department and his health issues.
The pleas taken by the appellant carries no weight in the face of the overall facts and circumstances of the case. The appellant had demanded and accepted a bribe of Rs. 50,000/- from the complainant for settling the complaint lodged against him. The appellant was arrested red handed by CBI/ACB on 22.09.2022 in Case FIR No. RCOO32022A0058 dated 21.09.2022, u/s 7 Poc Act, PS CBI, ACB, New Delhi, while accepting 11 OA No.1216 /2024 Court No.2 (item No.43) Rs.50,000/- from the complainant. In such scenario, it becomes undesirable to retain such a tainted person on the rolls of a disciplined force. Further, if he continues to serve in the police department, it is also highly probable that during the entire process of departmental proceedings, the complainant and witnesses might be put under fear of threat to their person and property by the appellant. It also calls for great courage to depose against a desperate person and the task becomes more acute and difficult where the police personnel could use his profession and position to influence the statement/deposition of the witnesses. Hence the decision of invoking of Article 311 (2) (b) Constitution of India was taken by the disciplinary authority, which is justified and well reasoned. As pleaded by the appellant referring other similar cases has no weight as each and every case has its own merits and circumstances. Hence, it is an apt case where exemplary punishment was to be awarded to the appellant. No new circumstances have since emerged so far to differ with the Disciplinary Authority. There is, as such, no ground to interfere with the punishment order.
I agree with the findings of the disciplinary authority in his order and, as such I find no merit in the appeal. The appeal filed by the appellant against the punishment order is hereby rejected.
Let the appellant be informed accordingly.
5. The applicant states that the allegations made in the criminal case as well as in the impugned order are specifically wrong and denied to be false. He contends that he has been falsely implicated and there is no evidence suggesting his involvement in the alleged incidents. The applicant also states that it is the matter of record that vide order dated 28.09.2023 the 12 OA No.1216 /2024 Court No.2 (item No.43) applicant stands discharged in the criminal case as the prosecution sanction was given by the incompetent authority and further liberty was granted to CBI to take fresh sanction from the Competent Authority and to file fresh charges if sanction is accorded by the Competent Authority.
6. 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. 3436/2022 & 3494/2022 (Sandeep Moun vs GNCTD 13 OA No.1216 /2024 Court No.2 (item No.43) 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- SLP NO.- 1 1681/2024, Sant Ram- HC- W.P. (C)- 5562/2024 Re-instatement order 16.07.2024 and Circular Dated 13.05.2024 issued by DCP Legal Division/PHQ Delhi.
7. At the time of 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 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 to departmentally enquiry straight way dismissed the applicant from service.14 OA No.1216 /2024
Court No.2 (item No.43)
8. The learned counsel for the applicant also submits that admittedly the preliminary enquiry was conducted through ACB/PG-Cell North District and, therefore, within a short span of time i.e. from the date of registration of the aforesaid FIR on 21.09.2022, the applicant was placed under suspension. The applicant was arrested and was granted bail on 19.10.2022. The order dated 25.10.2022 dismissal from service was passed by the Disciplinary Authority as the applicant was in judicial custody as he got bail only on 19.10.2022 giving no opportunity to the applicant to explain his position in the matter. The applicant preferred an appeal against the order dated 25.10.2022 of the Disciplinary Authority, however, the Appellate Authority have failed to consider the facts that the applicant has brought out in his appeal and rejected his appeal.
9. 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 15 OA No.1216 /2024 Court No.2 (item No.43) can come to the conclusion that departmental enquiry is not reasonably practicable. However, in the present 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.
10. 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. The pre-condition is that a departmental enquiry is not reasonably practicable and came 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.
11. The respondents have filed counter affidavit on 08.05.2024 wherein they have stated that a complaint was filed by one Mr. Anand Singh S/o Late Shri Harpal 16 OA No.1216 /2024 Court No.2 (item No.43) Singh resident of Village Ujawa, Delhi against his cousin brother and family regarding property dispute in the Police Station Jaffarpur New Delhi. On 08.09.2022, the said complaint was entrusted to the applicant ASI Shri Ved Prakash. It is alleged that the above mentioned complainant demanded a brieb of Rs.
1,00,000/- from the alleged Bijender s/o Dilbagh Singh resident of Ujawa and the demand of bribe was settled at Rs.50,000/-. A team of ACB mad a trap and the amount of bribe was recovered from the applicant. A case FIR RC003200A0058 dated 21.09.2022 under section 7 of PC Act P.S. CBI, ACB New Delhi, was registered against the applicant. The applicant was placed under suspension. A preliminary enquiry was carried out. It was held during the preliminary enquiry that the applicant was sole person who has done this misconduct. The applicant being a Police Officer, is a government servant and it is expected from him that he should (i) maintain the absolute integrity, (ii) do his duty with devotion; and (iii) do nothing which is unbecoming of government servant. The act done by the applicant was treated as grave misconduct and unbecoming of a Police Officer. After obtaining the 17 OA No.1216 /2024 Court No.2 (item No.43) necessary concurrence from the competent authority Rule 311 (2) (B) was invoked and the applicant was dismissed from the service. The respondents were of the considered view that act of the applicant is of a serious misconduct if he is allowed to continue in the Police Force it would be detrimental to public interest. They came to the conclusion that it would not be reasonably practicable to conduct regular departmental enquiry against the applicant as there is reasonable belief that no witness /complainant would comeforward to depose against him. They also held that the above mentioned compelling circumstances under Article 311 (2) (b) of the Constitution of India is invoked in this case. The service of the applicant was dismissed with immediate effect. The period of suspension with immediate effect 22.09.2022 was also held to be treated as the period "not spent on duty" for all intents and purposes.
11.1. The respondents further stated that the applicant has demanded and accepted the bribe of Rs. 50,000/- resulted in registering an FIR against him. They have stated that the involvement of the appellant in a shameful activity had eroded the faith of the 18 OA No.1216 /2024 Court No.2 (item No.43) common people in the police force and his continuation in force is caused further irreparable loss to the functioning the integrity of Delhi Police. They held that act of the applicant is in a manner of highly unbecoming of Police official. The applicant was arrested and released on bail. The respondent contend that the applicant was properly dismissed under Article 311(2) (b) of the Constitution of India. Prior to this decision, a preliminary enquiry was conducted subsequently an concurrence of the competent authority was taken to invoke the provision of Article 311 (2) (b) while responding to the reliance placed by the applicant in OA No. 3058/2022 decided on 28.07.2023 in the matter of Kuldip Singh and OA No. 1038/2017 decided on 27.04.2023 in the matter of Neeraj Kumar vs. GNCTD, the respondents state that the above cases cited by the applicant are entirely different from the present case, therefore, having no relevance in the present case.
12. The applicant has filed rejoinder to the counter affidavit filed by the respondents on 14.05.2024. The applicant has reiterated the stand mentioned in the OA and has placed on the following the judgments:- 19 OA No.1216 /2024
Court No.2 (item No.43)
(i) Government of NCT of Delhi and Ors. Vs. Dushyant Kumar in W.P.(C) No.2407/2024
(ii) Government of NCT of Delhi and Ors. Vs. Ex. Ct. Naeem Khan in W.P. (C) No. 10452/2023.
(iii) Commissioner of Police & Ors. Vs. Ex.
Const. Jatin Kumar in W.P. (C) No. 15229/2023. (iv) Commissioner of Police & Ors. Vs. Kapil in W.P.(C) No. 5485/2024. (v) Commissioner of Police & Ors. Vs. Ravinder Singh in W.P.(C) No. 12944/2023.
13. 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.
14. 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 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 20 OA No.1216 /2024 Court No.2 (item No.43) 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 issued by the Delhi Commissioner of Police, Legal Division dated PHQ Delhi.
15. The learned counsel for the respondents placed pleads that the respondents have given detailed justification of invocation of the Article 311 (2) (B) of 21 OA No.1216 /2024 Court No.2 (item No.43) 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 sake 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.
16. The following reasons have been recorded by the disciplinary authority while issuing the punishment order of dismissal on 25.10.2022:-
"The involvement of ASI Ved Prakash, No. 556/DW, shows his criminal propensity and immoral attitude. He being member of disciplined force is responsible for protecting the society and citizens of this country from immoral and disreputable activities, but instead of discharging his duty ethically and sincerely, he has not only tarnished the image of Delhi Police but also have rudely shaken the faith of the citizens of the entire police force, who is supposed to be their protectors. He has acted in a most reprehensible manner, which is never expected from the members of a disciplined force and which is undoubtedly 22 OA No.1216 /2024 Court No.2 (item No.43) extremely prejudicial to the personal safety and security of society at large.
Whereas, the involvement of ASI Ved Prakash, No. 556/DW in such a shameful activity has eroded the faith of common people in the police force and his continuance in force is likely to cause further irreparable loss to the functioning and credibility of Delhi Police. The defaulter ASI has acted in a manner highly unbecoming of a police official.
Whereas after such act of serious misconduct, if the defaulter ASI is allowed to continue in the police force, it would be detrimental to public interest. The facts and circumstances of the case are such it would be reasonable thạt it would be practicable to conduct regular departmental enquiry against the defaulter ASI as there is a reasonable belief that no witness/complainant would come forward to depose against him.
Whereas, in the backdrop of the position explained in the foregoing paras, it is clear that ASI(Exe.) is a public servant with a criminal bent of mind and there is every possibility that no witness/complainant would come forward to depose against him in case a departmental enquiry is initiated against him. Under these sets of compelling circumstances, Article 311 (2) (b) of Constitution of India is invoked in this case. It would be in the interest of general public and society as well as for the establishment of rule of law".
17. The authority on the presumption that alleged offence has been committed by the applicant so there is no need to conduct the departmental enquiry his reason which cannot stand to the scrutiny of law for invoking the power under provision of Article 311(2) (b) of the Constitution of India and that so called reasons 23 OA No.1216 /2024 Court No.2 (item No.43) recorded in the impugned order are mentioned only to avoid the disciplinary enquiry.
18. 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) and dismiss the applicant. The Appellate Authority did not explore in the present case that majority of the witnesses are official witnesses. If preliminary enquiry is possible, then the departmental enquiry is 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 24 OA No.1216 /2024 Court No.2 (item No.43) respondents against the applicant and their disdain to uphold Rule of Law. The respondents being Senior Police Officer holding high position are required to run the administration decision making lawfully. It is due to failure of respondents that the criminal case against the applicant has fallen flat that on technical ground of giving prosecution sanction by the incompetent authority. This speaks volumes on the internal inconsistence in handling the disciplinary and vigilance affairs within the police department of Delhi. A serious course correction is needed. Leaving this portion here for pondering of competent authority, we proceed further. Only on presumptions and assumptions without any material with the witnesses / complaints would not come forward to depose against the applicant, the Appellate Authority has decided and rejected the appeal which could be construed as bad in law.
19. It is apparent that the Disciplinary Authority has assumed as if the allegations made in criminal case (FIR) already stand proved and thus with this presumptions, the present impugned order has been passed. Once the order of Disciplinary Authority is 25 OA No.1216 /2024 Court No.2 (item No.43) 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 Disciplinary Authority is being passed invoking Art. 311(2)(b). 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 has invoked the power under Art. 311(2)(b). The same 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 expressive like as there is a "reasonable belief" itself shows that the reasoning is based on 26 OA No.1216 /2024 Court No.2 (item No.43) suspicion and surmises. The reasoning recorded by Disciplinary Authority for dispensing away the departmental enquiry has been dealt by this Tribunal in various OAs qua the same department i.e. Delhi Police. It is observed that most of witnesses are official witness in criminal case; once the criminal trial and preliminary enquiry are possible, then departmental enquiry is also possible. There is no material in the hand of Disciplinary Authority while passing the impugned order which could even suggest that witness Or complainant will not come in departmental enquiry. There is no clear and robust evidence in front of respondent authority that the applicant has made any attempt to influence any witness thus making the order of disciplinary authority as bad in law.
20. The applicant is an Assistant Sub- Inspector 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 27 OA No.1216 /2024 Court No.2 (item No.43) dispensing the D.E. under Art. 311 (2) (b) are not tenable. That most of the witnesses in present case are official witnesses that too of CBI and Delhi Police. As stated above, the applicant is only Assistant Sub- Inspector in Delhi Police, if as per the allegations, the case of the department is so good on merit then come what may the applicant should be given a chance to put forward his defense in disciplinary enquiry. The preliminary enquiry was conducted by the respondents in order to construe that the allegations are true against the applicant that too at the back of the applicant. This fact clearly shows that Art. 311(2) (b) 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 D.E. That the impugned order is passed on the gravity of misconduct and with the presumption that the allegations are proved against the applicant. In such a situation, Article 31(2(b) of the Constitution of India cannot be invoked on the same amounts to abuse of process of law.
28OA No.1216 /2024 Court No.2 (item No.43)
21. In the public interest and even as per Rule of law, it was incumbent upon the authorities not to put to use Art. 311(2)(b) 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 Art. 311(2)(b) of Constitution of India. The applicant as per rule of law must be given opportunity to put forward his defence in regular D.E. until and unless a DE is not reasonably practical. The reasons recorded in present impugned order to dispensing with the DE are just not tenable in the eyes of law and Art. 311(2)(b) of Constitution of India as a short cut method. Admittedly in the present case a P.E. was conducted through ACP/Grievance Cell the order of dismissal from service was passed by Disciplinary Authority, if preliminary enquiry is possible then disciplinary enquiry is also possible. The Hon'ble Tribunal in various judgments the same ground has allowed many petitions in respect of Article 311(2)(b). The Hon'ble Tribunal recently qua the same respondents have passed the judgments where by the order of dismissal from service under Art 311(2)(b) of 29 OA No.1216 /2024 Court No.2 (item No.43) Constitution of India has been quashed and set aside on the ground that if PE is possible then DE is also possible.
22. There is no attempt to initiate departmental enquiry as nothing has brought on record, subsequent to the allegation that the applicant has made any attempt to influence the witness and thus 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 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 30 OA No.1216 /2024 Court No.2 (item No.43) come on to this conclusion and to invoke Art. 311(2)(b) of the Constitution of India.
23. The concurrence of the Spl. C.P., Admn. before taking decision under Art. 311 (2)(b) has to be taken as per the conditions laid down in circular NO.5545- 645/P.Cell/vig./P.) Misc. Dated 11.09.2007. The condition precedent are as follows:-
"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 the 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 an order under Art. 311 (2) (b) of the Constitution, Disciplinary Authority has to take prior concurrence of Spl. CP/Admn.)"
24. The power under Art. 311(2)(b) has been invoked subsequent to a preliminary enquiry. The object of conducting the preliminary enquiry for invoking the power under Art. 311(2)(b) is being laid down in circular dated 11.09.2007, the reason for dispensing the departmental enquiry are on suspicion and surmises and no such material even through 31 OA No.1216 /2024 Court No.2 (item No.43) 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. Therefore, the concurrence of Special Commissioner of Police is not in consonance to the portion laid down in the above mentioned OM dated 11.09.2007 issued by respondents. The cases in which preliminary enquiry is being conducted but in absolute violation of circular dated 11.9.2007 and straightaway the Disciplinary Authority passed an order under Art. 311(2)(b) 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.
17. The Disciplinary Authority records that in a Preliminary Enquiry itself, it is being clearly established that the allegation against the applicant are proved but again the same cannot be a ground to invoke the Art. 311(2)(B). The copy of preliminary enquiry report is not supplied to the applicant nor the applicant has been part of the preliminary enquiry but 32 OA No.1216 /2024 Court No.2 (item No.43) on the contrary the law is that Preliminary Enquiry is possible then even the departmental enquiry is also possible and in such cases the Art. 311(2)(B) is not invoked. That the applicant is placing its 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 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. "
26. In the present case when the P.E. is possible then even a Departmental Enquiry is also possible and thus 33 OA No.1216 /2024 Court No.2 (item No.43) 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. No order for initiating the Departmental Enquiry was made by the department thus it is wrong to say that the present Departmental Enquiry is not reasonably practicable.
27. The disciplinary authority is not able to apply its mind that the power under Article 311 (2)(b) has to be exercised with a pre-condition. The pre-condition is that a disciplinary enquiry is not reasonably practical and to conclude that, the Disciplinary Authority has to record reasons. The present reasoning is based on the assumption that the applicant has committed the alleged crime and thus departmental enquiry is not required. The Disciplinary Authority on the 34 OA No.1216 /2024 Court No.2 (item No.43) 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 Art. 311l (2)(B) of 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 Art 311 (2)(b) is to be invoked or not.
28. In the present case is a case of absolute misuse of power vested in Disciplinary Authority under article 311 (2) (b) of constitution of India and hence bad in law. The reasons recorded by the authorities to dispense 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) as being mentioned are only to avoid the departmental enquiry.
It is matter of settled law that without conducting any departmental enquiry the finding of guilt against the applicant has been arrived on to and the same act is 35 OA No.1216 /2024 Court No.2 (item No.43) enough to vitiate the order of the disciplinary authority.
There is a finding of guilt against the applicant without conducting the DE 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 in a Preliminary Enquiry, to come on to a conclusion that witness will be discouraged to appear in a D.E. Thus the order of the authorities establishes non-application of mind, bias, arbitrariness and to adopt a short cut method of dismissing the applicant by invoking the power under Art. 311 (2)(b) of Constitution of India only keeping in mind the gravity of the allegations.
29. The applicant preferred an appeal against the punishment order of dismissed from services on 21.11.2022. The Appellate Authority rejected the appeal on 23.02.2024 as under:-
"A P.E. was ordered vide order No.1782/HAP/P-II/DWD dated 22.09.2022 and entrusted to Sh. Ravinder Singh, ACP/P.G. Cell/DWD. Sh. Ravinder Kumar, ACP/PG Cell had conducted the PE and submitted the enquiry report, which concluded that the appellant had demanded 36 OA No.1216 /2024 Court No.2 (item No.43) bribe of Rs.50,000/- as undue advantage from the complainant for settling the complaint against him and he accepted Rs.50,000/- from the complainant.The CBI Team had recovered the bribe money given to him by Mr. Bijender Singh and arrested him. A case FIR No. RCO032022A0058 dated 21.09.2022, u/s 07 PC Act PS CBI, ACB, New Delhi was registered against the appellant and he solely was done this misconduct. The police officer was a government servant and it was expected from him that he shouid (i) maintain absolute integrity, (ii) do his duty with devotion:
and (iii) do nothing which was unbecoming of Government servant. The act done by the appellant was a grave misconduct, which unbecoming of a police officer.
Whereas, necessary concurrence of worthy Spl. CP/L&0/Zone-II was sought to invoke Articles 311(2) (b) of the Constitution of India upon the appellant in light of Circular No.2513- 2612 /P.Cel/ (P.Misc) / Vigilance dated 18.04.2018 and the Special Commissioner of Police, Law & Order, Zone-II, Delhi was expressed his concurrence that case was fit to invoke Articles 311(2) (b) of the Constitution of India upon the appellant.
The involvement of the appellant shows his criminal propensity and immoral attitude. He being member of disciplined force was responsible for protecting the society and citizens of this country from immoral and disreputable activities, but instead of discharging his duty ethically and sincerely, he had not only tarnished the image of Delhi Police, but also had rudely shaken the faith of the citizens of the entire police force, who was supposed to be their protectors. He had acted in a most reprehensible manner, which was never expected from the members of a disciplined force and which was undoubtedy extremely prejudicial to the personal safety and security of society at large.
Whereas, the involvement of the appellant in šuch a shameful activity had eroded the faith of common people in the police force and his 37 OA No.1216 /2024 Court No.2 (item No.43) continuance in force is likely to cause further irreparable loss to the functioning and credibility of Delhi Police. The appellant had acted in a manner highly unbecoming of a police official. After such act of serious misconduct, if the appellant was allowed to continue in the police force, it would be detrimental to public interest. The facts and circumstances of the case are such that it would not be reasonable practicable to conduct regular departmental enquiry against the appellant as there was a reasonable belief that no witness/complainant would come forward to depose against him.
Whereas, in the backdrop of the position explained in the foregoing paras, it was clear that the appellant was a public servant with a criminal bent of mind and there was every possibility that no witness/complainant would come forward to depose against him in case a departmental enquiry was initiated against him. Under these sets of compelling circumstances, Articles 311(2) (b) of Constitution of India was invoked in this case. It would be in the interest of general public and society as well as for the establishment of rule of law. Therefore, the disciplinary authority dismissed the appellant from the service under Articles 311 (2) (b) of Constitution of India. His suspension period w.e.f. 22.09.2022 to the date of issue of this order was also decided as period Not spent on duty" for all intents and purposes, Aggrieved with the order passed by the Disciplinary Authority, the appellant has filed the instant appeal which is within time limit. The copy of order was received by the appellant on 26.10.2022 and he has submitted his appeal on 21.11.2022.
I háve carefully gone through the appeal, the impugned order and material available on record. I have also heard him in O.R. as per principles of natural justice. The appellant pleaded that before taking such a drastic action, the disciplinary authority neither listened to the version of the appellant nor provided the opportunity to put forward his defence combined with reality. His 38 OA No.1216 /2024 Court No.2 (item No.43) neat, clean and unblemished service record of about 34 years has not been considered and also did not wait for the final outcome of the criminal case. The disciplinary authority did not see the family responsibilities of the appellant and precedence of similar & identical cases in the matter. It would not be wrong to suggest that before taking such a hard decision, no opportunity of defence or putting the version about the real facts was provided to the appellant which is prime & basic doctrine of natural justice.
The appellant has further pleaded that the disciplinary authority also did not bother to consider that mere registration of FIR is not sufficient enough to prove the culpability of individual until and unless it is proved by the competent authority. He has further suggested that extreme violation of natural justice has been committed in the present case and it needs to be undone to maintain the true spirit of law. Further while summing-up the chapter, the disciplinary authority did not consider that after registration of the case of PoC Act, countless police personnel are still serving in department have not been dealt with in such discriminatory manner and the facts have been brought at home by initiating regular departmental enquiries. The issue of concern is that the competent authority before taking such drastic action, did not bother to scrutinize the available record where the individuals have been dealt with departmentally and not thrown out, of the department in such a manner as done in the case of appellant.
The appellant has further added that FIR lodged against him by itself is not a substantive piece of evidence and where allegations made in the FIR were not substantiated at the trial by any oral evidence. Hence debarring from the department in such a manner on the basis of registration of FIR is completely against the tenets of natural justice. The appellant has also highlighted his good work during his 34 yēarş of service in the-department and his health issues. 39 OA No.1216 /2024 Court No.2 (item No.43) The pleas taken by the appellant carries no weight in the face of the overall facts and circumstances of the case. The appellant had demanded and accepted a bribe of Rs. 50,000/- from the complainant for settling the complaint lodged against him. The appellant was arrested red handed by CBI/ACB on 22.09.2022 in Case FIR No. RCOO32022A0058 dated 21.09.2022, u/s 7 Poc Act, PS CBI, ACB, New Delhi, while accepting Rs.50,000/- from the complainant. In such scenario, it becomes undesirable to retain such a tainted person on the rolls of a disciplined force. Further, if he continues to serve in the police department, it is also highly probable that during the entire process of departmental proceedings, the complainant and witnesses might be put under fear of threat to their person and property by the appellant. It also calls for great courage to depose against a desperate person and the task becomes more acute and difficult where the police personnel could use his profession and position to influence the statement/deposition of the witnesses. Hence the decision of invoking of Article 311 (2) (b) Constitution of India was taken by the disciplinary authority, which is justified and well reasoned. As pleaded by the appellant referring other similar cases has no weight as each and every case has its own merits and circumstances. Hence, it is an apt case where exemplary punishment was to be awarded to the appellant. No new circumstances have since emerged so far to differ with the Disciplinary Authority. There is, as such, no ground to interfere with the punishment order. I agree with the findings of the disciplinary authority in his order and, as such I find no merit in the appeal. The appeal filed by the appellant against the punishment order is hereby rejected. Let the appellant be informed accordingly."
30. The appeal of the applicant has been rejected by an absolutely non-speaking and mechanical order. The Appellate Authority failed to apply its mind that the law 40 OA No.1216 /2024 Court No.2 (item No.43) quoted by the applicant in the statutory appeal clearly establishes that the reasons recorded for dispensing with the DE are not legally tenable in the eyes of law. The present case is not a case for invoking the power under Art. 311(2)(b). The Hon'ble Apex court has laid down clearly that the gravity of the charge will not be a tiltating factor in deciding whether a Departmental Enquiry is a reasonably practicable or not. The more graver the charge the opportunity to defend himself should be more.
31. The applicant has placed reliance on the order dated 13.12.2023 passed by this Tribunal in the case of Dushyant Kumar Vs. Govt. of NCT of Delhi & Ors. The relevant portion of the same is reproduced below:-
8. A catena of cases of the Orders/Judgments of the Hon'ble Supreme Court, Hon'ble High Court of Delhi and of this Tribunal on the issue as involved in the present case were also considered by the Division Bench (consisting one of us) while deciding the case of Ct. Sumit Sharma (supra).
9. Having regard to the above, we have carefully perused the impugned order(s), we find that nothing 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 41 OA No.1216 /2024 Court No.2 (item No.43) effort was made by them to conduct an enquiry, nor there is any evidence that despite their best efforts, the respondents would not have been able to produce the witness(es) to lead evidence against the applicant. Further 18 OA No.1019/2023 nothing is brought on record that witness(es) has/have been threatened by the applicant or they were too scared of the applicant to come forward in the regular enquiry proceedings. It is also found that the disciplinary authority while passing the impugned order has very casually come to the conclusion that it would not be possible to conduct the departmental enquiry against the applicant, as no reason at all has been recorded in this regard and the applicant is guilty of committing grave misconduct and was involved in the aforesaid offences.
10. Having regard to the above, we are of the considered view that impugned orders passed by the respondents are not only in violation of the settled law but also of their own circular dated 11.9.2007. The reasons given by the respondents for dispensing with the enquiry are not in consonance with the law settled by the Hon'ble Supreme Court and Hon'ble High Courts and followed by this Tribunal in a catena of cases, including in one referred to hereinabove.
11. In view of the aforesaid facts and circumstances of the present case, we are of the considered view that the instant OA is squarely covered by the common 19 OA No.1019/2023 Order/Judgment dated 10.2.2022 in Ct. Sumit Sharma (supra) and a batch of cases. Therefore, the present OA deserves to be partly allowed and hence, the same is partly allowed with the following directions:- (i) Orders dated 03.10.2022 (Annexure A/1) and dated 10.3.2023 (Annexure A/2) passed by the disciplinary and appellate authorities respectively are set aside; (ii) The applicant shall be entitled to all consequential benefits in accordance with the relevant rules and law on the subject; (iii) The respondents shall implement the aforesaid directions within eight weeks of receipt of a copy of this order; and (iv) 42 OA No.1216 /2024 Court No.2 (item No.43) 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."
32. The order of this Tribunal was challenged in the Hon'ble High Court of Delhi in W.P.(C) 2407/2024 in the matter of Govt. of Delhi and Ors. Vs. Dushyant Kumar, The Honble High of Delhi dismissed the Writ Petition being meritless. The relevant portion of the said judgment is as under:-
"14. In the light of the aforesaid, we have no hesitation in concurring with the Tribunal that the petitioners' decision to dispense with the enquiry was wholly unsustainable. The petitioners appear to have proceeded on an erroneous presumption that merely because a criminal case has been registered against the respondent, he was to be treated as guilty of the misconduct. No doubt, the respondent is a police officer, whose misconduct can never be condoned, but this would not imply that the principles of natural justice should be given a complete go by. As noted hereinabove, the petitioners have not given any valid reason for dispensing with the enquiry except for repeatedly stating that the respondent is guilty of serious misconduct. This course of action, in our view, is completely impermissible.
15. Before we conclude, we may also consider the decision in Ajit Kumar Nag (supra) relied upon by the petitioners. We, however, find that instead of forwarding the case of the petitioners, the said decision supports the case of the respondent. It would, therefore, be apposite to refer to paragraph no.44 of the said decision, which reads as under:-43 OA No.1216 /2024
Court No.2 (item No.43) "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 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 44 OA No.1216 /2024 Court No.2 (item No.43) 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."
33. In the order dated 16.04.2024 542/2023 in OA 591/2023 passed in case of Deepk vs. Govt.of NCT of Delhi & Ors of this Tribunal. The Tribunal has passed as under:-
" 20. In the present case, as apparent from the reasons recorded by the respondents in the impugned order, it is apparent that the respondents have arrived at the conclusion for dispensing with the regular inquiry due to the involvement of the applicants in a grave and serious case. The respondents have jumped to the conclusion that on account of serious allegations, the applicants have become ineligible to be continued in police force. There is no finding that the 24 Item No. 35 & 36 Court-2 OA No. 542/2023 & 591/2023 applicants and/or anybody on their behalf have at any point of time even attempted to influence or coerce any of the witness. Even there is no finding that the applicants in the captioned OAs who are very junior officers under the respondents were in a position to influence the witnesses who are generally senior officials working in the Government of India and particularly in CBI. It is also nowhere recorded by the respondents as to how if not only preliminary inquiry was found possible, but also the criminal trial is possible in the said case FIR with the support of more than nineteen witnesses and at no point of time the 45 OA No.1216 /2024 Court No.2 (item No.43) 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."
34. In Writ Petition (C) No. 1258/2023 & CM App. No.4759/2023 in the case of Commissioner of Police Delhi Police & Ors. Vs. Manjeet; The Hon'ble High 46 OA No.1216 /2024 Court No.2 (item No.43) Court of Delhi vide its judgement dated 22.04.2024 has held in para 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 47 OA No.1216 /2024 Court No.2 (item No.43) 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."
35. In other Writ Petition (C) No.4201/2024 on 20.03.2024 in case of Commissioner of Police and anr. Vs. Jagamal 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 48 OA No.1216 /2024 Court No.2 (item No.43) respondent had lowered the image of the police department and goodwill of a uniformed organisation, an exemplary punishment of dismissal ought to be imposed upon him so as to send a clear message to undesirable persons and to prevent reoccurrence of such crimes. In the light of the aforesaid, we find absolutely no reason to differ with the conclusion arrived at by the learned Tribunal that the dismissal order passed by the petitioners did not contain any justifiable reason whatsoever for dispensing with the enquiry. What clearly emerges is that the petitioners have proceeded on the premise that such police officers, who are charged with serious misconduct, should be immediately dismissed from service. This approach, in our view to dispense with an enquiry, would not meet the parameters laid down under Article 311(2) (b) of the Constitution of India.
11. At the cost of repetition, we may reiterate that merely because the respondent was a police personnel, would not entitle the petitioners to give a complete go-bye to the requirement of holding a departmental enquiry against him without recording any justifiable reasons as to why departmental enquiry could not be held against him.
12. For the aforesaid reasons, we find no infirmity with the impugned order. The writ petition, being meritless, is along with accompanying application, dismissed."
36. In Petition for Special Leave to Appeal (C) No. 11681/2024 filed by the Commissioner of Police & Anr. Vs. Jagmal Singh, The Hon'ble Apex Court vide its judgment on 10.07.2024 has dismissed the said SLP and the judgment of Hon'ble Court of Delhi attained finality.49 OA No.1216 /2024
Court No.2 (item No.43)
37. 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 50 OA No.1216 /2024 Court No.2 (item No.43) the basis of the report of the preliminary enquiry itself, the petitioners presumed that the respondent was guilty of serious misconduct and therefore deserved to be dismissed at the earliest. This in our considered view, as has been rightly held by the learned Tribunal, could not be treated as a ground to reach a conclusion that it was not reasonably practicable to hold an enquiry against the respondent. This course of action, in our considered opinion, was clearly violative of Article 311(2)(b) of the Constitution of India.
11. No doubt, the respondent is a police personnel and any misconduct on his part is liable to be dealt with appropriately. This, however, does not imply that the petitioners could, on the basis of the gravity of the charges levelled against him, dispense with the requirement of an enquiry on absolutely vague grounds. As noted hereinabove, the petitioners have given no reason whatsoever in the impugned order for dispensing with the inquiry. The impugned order of dismissal proceeds on the basis that the respondent's guilt had already been proved in the preliminary enquiry and had also been admitted by him. We therefore have no hesitation in agreeing with the learned Tribunal that the petitioners have dispensed with the enquiry only on the basis of a perceived notion that the respondent being a police personnel, W.P.(C) 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.51 OA No.1216 /2024
Court No.2 (item No.43)
38. In pursuance to the order of this Tribunal in OA No.14/2018 titled as Sant Ram vs. Commissioner of Police and the judgment of the Hon'ble High Court of Delhi in W.P.(C) 5562/2024, CAV 181/2024 CM Appl. No.22929/2024, the respondents reinstated the services of the applicant Shri Sant Ram in that case. The order dated 26.07.2024 is reproduced as under;-
In pursuance of judgment dated 06.02.2024 passed by the Principal Bench of Hon'ble Mr. R.N. Singh, Member (J) & Hon'ble Mr. Sanjeeva Kumar, Member (A), Central Administrative Tribunal, New Delhi in 0.A. No.14/2018 titled Sant Ram Vs. Commissioner of Police, Delhi & Ors. and judgment dated 23.04.2024 passed by the Hon'ble Ms. Justice Rekha Palli & Hon'ble Mr. 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.
52OA No.1216 /2024 Court No.2 (item No.43) He is deemed to be under suspension from the date of his dismissal as he had already been placed under suspension vide D.D.No.29- A/PTC/JK dated 22.07.2017 and formal issued vide order No.1738-70/HAP/PTC (DA-II) dated 26.07.2017. His dismissal/suspension period will be decided later on.
Let Const. (Exe.) Sant Ram, No.324/PTC (PIS No.28060573) be informed accordingly.
39. 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 Hi8gh Court alongwith copy of the order dated 22.04.2024 wherein the Hon'ble has observed that " in large number of petitions filed by the Commissioner of Police which are coming up before the this Court, we are finding termination orders are being passed b y the petitioners by dispensing with departmental enquiries in a most mechanical manner without recording any valid reasons. We, therefore, direct that a copy of this order be placed before the Commissioner of Police, Delhi to ensure that in future, enquiries are not dispensed with without assigning justifiable reasons.
It is, therefore, requested that the aforementioned directions of the Hon'ble High Court of Delhi shall be taken into 53 OA No.1216 /2024 Court No.2 (item No.43) 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:-
"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 54 OA No.1216 /2024 Court No.2 (item No.43) 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 Constitution of India, Disciplinary Authority has to take prior concurrence of Spl. CP/Admn.
55OA No.1216 /2024 Court No.2 (item No.43) This has the approval of C.P., Delhi.
Sd/-
(S.N. SRIVASTAVA) JT. COMMISSIONER OF POLICCE:
HDQRS,: DELHI""
40. 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.
41. 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 26.7.2019 (Annexure A-1)
and dated 6.4.2021 (Annexure A-2)
passed by the disciplinary and
appellate authorities respectively are set aside;56 OA No.1216 /2024
Court No.2 (item No.43)
(ii) The applicant shall be entitled to all consequential benefits in accordance with the relevant rules and law on the subject;
(iii) The respondents shall implement the aforesaid direction within eight weeks of receipt of a copy of this order; and
(iv) However, the respondents shall be at liberty to initiate disciplinary proceedings against the applicant in accordance with the law.
However, in the facts and circumstances, there shall be no order as to costs.
(Rajinder Kashyap) (R. N. Singh)
Member (A) Member (J)
/mk/