Central Administrative Tribunal - Delhi
Manoj Jhakhar vs Delhi Police on 19 September, 2024
1
OA No.1696 /2024
Court No.2 (item No.44)
Central Administrative Tribunal
Principal Bench
OA No. 1696/2024
Reserved on:06.08.2024
Pronounced on : 19.09.2024
Hon'ble Mr.R.N. Singh, Member (J)
Hon'ble Mr. Rajinder Kashyap, Member (A)
Manoj Jhakar
S/o Sh. Ramesh Jhakar
R/o Village- Dhanirwas
Post Office- P.S. & Tehsil- Salhawas
District- Jhajjar
Haryana-124146
(Aged about 31 years)
(Dismissed Head Constable)
-Applicant
(By Advocate: Shri Ajesh Luthra)
VERSUS
1. Commissioner of Police
Delhi Police Hdqrs. ( New Building)
Behind Parliament Street Police Station,
New Delhi.-11001.
2. Additional Commissioner of Police
(New Delhi Range)
1st. Floor, Room No. 108
Tower -1, Delhi Police Hdqrs.
Delhi Police Hdqurs. (New Building)
Behind Parliament Street Police Station
New Delhi.
3. Deputy Commissioner of Police
New Delhi District
P.S. Parliament Street
New Delhi.
-Respondents
(Through Advocate: Mr.Hanu Baskar)
2
OA No.1696 /2024
Court No.2 (item No.44)
ORDER
By Hon'ble Mr. Rajinder Kashyap, Member (A):-
The applicant has filed present Original Application under Section 19 of the Administrative Tribunals Act., 1985, seeking the following relief(s) under para 8 of the OA:-
"(a) Quash and set aside the impugned order dated 01.04.2024. The Appellate Order (Annexure A/1) and 06.02.2024- The Penalty Order (Annexure A/2) and
(b) Direct the respondents to forthwith reinstate the applicant in service.
(C) Accord all consequential benefits including seniority and back wages.
(d) Award costs of the proceedings in favour of the applicant.
(e) Any other relief which this Hon'ble Tribunal deems fit and proper in favour of the applicant ."
2. The factual matrix of the present case is that the applicant was appointed as Constable in Delhi Police on 10.10.2012 and later promoted as Head Constable in July 2023. The applicant states that an FIR No. 11 dated 18.01.2024 u/s 384/120-B IPC P.S. Dasuya, Distt. Hoshiarpur, Punjab was registered against him along with other Police Staff and he was placed under suspension on same day. Thereafter, vide impugned order dated 3 OA No.1696 /2024 Court No.2 (item No.44) 06.02.2024 (Annexure A/2), he was dismissed from service without conducting regular departmental enquiry to establish the allegations and without affording any opportunity of hearing to the applicant to defend himself. He states that a Preliminary Enquiry was conducted through ACP, Sub-Division, Barakhamba Road which allegedly found the applicant was involved in a criminal act of extortion along with three associates, on which the FIR was registered. He states that the order of Disciplinary Authority dated 06.02.2024 does not contain any valid or justified reason to dispense with a regular departmental enquiry rather the same has been dispensed away with on surmises and conjectures. However, regular departmental enquiry has not been conducted on the ground that acts and circumstances of the case are serious and there is a reasonable belief that the witnesses will not come forward to depose against desperate persons and the task would become more difficult where the police personnel could use their offices to influence the witnesses. Hence, it is highly improbable that during the entire process of departmental proceedings, the complainant and witnesses would be put under constant fear or threat to their life and property from the defaulters. The applicant contends 4 OA No.1696 /2024 Court No.2 (item No.44) that he submitted an appeal (Annexure A/4) to the Appellate Authority which has been illegally rejected vide order dated 01.04.2024 (Annexure A/1), without applicant of mind. Hence, the applicant is left with no other legal efficacious remedy except to approach this Hon'ble Tribunal by way of instant Original Application seeking the aforementioned relief(s).
3. Pursuant to the notices, the respondents have filed their counter affidavit on 23.07.2024 opposing the claim of the applicant and have stated that on 15.01.2024, the appellant (Shri Manoj Jakhar) & HC(Exe.) Yogendra Singh, No. 623/ND (PIS No. 28094159), who were posted in PO Staff PS Parliament Street, had lodged their departure vide GD No. 52A dated 15.01.2024 PS Parliament Street after obtaining necessary outstation permission for arresting one Baldev s/o Sh. Mahender Singh R/o VPO Gandiwind P.S. Harike Distt. Tarn Taran, Punjab, who was declared Proclaimed Offender in case FIR No. 87/2006 u/s 420/419/468/471/1208 IPC, P.S. IGI Airport. On 18.01.2024, SI Har Prem Singh, SHO/PS. Dasuya Distt. Hoshiarpur, Punjab 5 OA No.1696 /2024 Court No.2 (item No.44) informed that the applicant (HC Manoj Jakhar, No. 1891/ND) was involved in case FIR No.11 dated 18.01.2024 u/s 384/120-B IPC P.S. Dasuya, Distt. Hoshiarpur, Punjab. The copy of FIR was also provided through WhatsApp. As per the allegations leveled in the FIR, on 17.01.2024 at about 07.35 p.m., an intimation of kidnapping of a person by five persons travelling in a black Scorpio Car from the area of Mukeria was received at PS Dasuya. On this information, SHO Dasuya laid a "Nakabandi" at highway near Kale village where one without registration number black Scorpio car was stopped by the team. 3 persons sitting in the car fled away from the spot and the rest two persons namely the applicant and HC Raja Singh, No. 522/KPT were nabbed. Subsequently, during the course of enquiry, it was revealed that on 17.01.2024, the applicant (HC Manoj Jakhar, No. 1891/ND) and HC Raja Singh, HC Yogendra Singh, No.623/ND, HC Dasveer Singh and HC Shreepal had apprehended one Harpreet Singh, a Proclaimed Offender of Delhi from Mukeria but later released him after extorting Rs.1.5 Lacs from his 6 OA No.1696 /2024 Court No.2 (item No.44) parents. It was also revealed that vide DD No.30 dated 18.01.2024 PS Dasuya, the applicant was formally arrested in the above case and presently he is in lawful custody. As per the contents of FIR, all the five persons had formed a group and extorted money for arresting Proclaimed Offenders. Further, no information was received about HC Yogendra Singh as he had not reported at PS, Parliament Street and his mobile was also found switched off. On having involved in case FIR No.0011 dated 18.01.2024 u/s 384/120-B IPC, PS Dasuya, District Hoshiarpur, Punjab, the applicant and HC (Exe.) (F.R.) Yogendra Singh No 623/ND of PS, Parliament. Street were placed under suspension w.c.f. 18.01.2024 vide order No. 214-35/HAP/NDD (D-1), dated 18.01.2024 and No. 236-58/HAP/NDD (D-1), dated 18.01.2024 respectively.
3.1 A Preliminary Enquiry was ordered vide No. 276/HAP/NDD (D-I) dated 18.01.2024 and was entrusted to Sh. Atul Kumar, ACP/Sub Division Barakhamba Road, who submitted his detailed enquiry report mentioning therein that the applicant and HC 7 OA No.1696 /2024 Court No.2 (item No.44) (Exc.) (F.R.) Yogendra Singh No. 623/ND had departed vide DD No. 52-A dated 15.01.2024 for outstation i.e. Tarn Taran, Punjab to arrest Proclaimed Offender in case FIR No. 87/2006 u/s 419/420/468/471/120-B IPC PS IGI Airport, Delhi. After that they did not pass any information to SHO/Parliament Street. On 18.01.2024, an information was passed on to SHO/Parliament Street by SHO/PS Dasuya (Punjab) that applicant (HC Manoj Jakhar, No. 1891/ND) was arrested and HC Yogendra Singh, No. 623/ND managed to escape from the spot. A case FIR No. 11/24 dated 18.01.2024 u/s 384/120-B IPC, PS Dasuya Hoshiyarpur, Punjab was registered in this regard. As per the contents of the FIR, five persons apprehended one Harpreet Singh, a P.O. of Delhi Police from Mukeria, Punjab, but later they released him after extorting Rs.1.5 Lac from his parents. On the information, SHO/Dasuya laid a Nakabandi at Highway near Kale Village where one black Scorpio car without registration number was stopped by the team. Three persons sitting in the car fled away from the spot and rest two persons, i.e., applicant and HC Raja Singh 8 OA No.1696 /2024 Court No.2 (item No.44) No.522/KPT were nabbed and arrested. During the Preliminary Enquiry, the present position of the case was discussed with SHO/Dasuya, Hoshiarpur Punjab over his mobile No.7986514205, who informed that there were five accused in this case namely Ex.HC Manoj Jakhar (applicant), HC Raja Singh, HC Yogendra Singh, HC Jasveer Singh and HC Shreepal. Out of five accused persons, two persons are HC Raja Singh (already dismissed police personnel of Punjab Police) and HC Shree Pal (already dismissed police personnel from Delhi Police Outer District). HC Jasveer Singh is presently posted in Outer District and the applicant (Ex.HC Manoj Jakhar) and HC (Exe.) (F.R.) Yogendra Singh No. 623/ND were posted at PS, Parliament Street. Two accused persons namely HC Manoj Jakhar (applicant) and HC Raj Singh had already been arrested and were running in lawful custody. The search of remaining three persons namely HC Yogendra, HC Jasveer and HC Shree Pal was continued as they were evading their arrest. The Enquiry Officer concluded that "From the enquiry conducted so far, the applicant [HC (Exc.) Manoj Jakhar No. 1891/N (PIS No. 28122004] 9 OA No.1696 /2024 Court No.2 (item No.44) and HC (Exe) Yogendra Singh No. 623/ND were found involved in a criminal act of extortion along with three other associates and a criminal case vide FIR No. 11/24 dated 18.01.2024 u/s 384/120-B IPC was registered against them at PS Dasuya Hosiyarpur, Punjab. The above act on the part of the applicant HC (Exe.) Manoj Jakhar No.1891/ND (PIS No. 28122004) and HC (Exe) Yogendra Singh No. 623/ND (PIS No. 28094159) shows their involvement in corrupt practice, moral turpitude, dereliction in discharge of their official duties and gross misconduct on their part. This incident has not only brought disrepute but has also tarnished the image of Delhi Police brought disagree to the organization and demolished other police personals in the eyes of the Society. Hence, they are required to be dealt with severe departmental action as per the provisions of Delhi Police (Punishment & Appeal) Rules, 1980. The misconduct meted by them had put the entire force to shame and such misconduct cannot be tolerated in any disciplined force like the Delhi Police, whose basic duty is to protect the life and property of the citizens of the Society apart from upholding law of the land. Hence, 10 OA No.1696 /2024 Court No.2 (item No.44) keeping in view the seriousness of the act and circumstances of the case, it would not be reasonably practicable to conduct a regular departmental enquiry against the defaulters on the premise that there is likelihood of witnesses not coming forward to depose against them, owing to their influential position as it calls for great courage to depose against them. It is also a fact that during the entire process of departmental proceedings, the complainant and witnesses would be put under constant fear or threat to their persons and property from the defaulters. Under these circumstances, it was felt that conducting a regular departmental enquiry against the defaulter Head Constables was not reasonably practicable. After having committed above gravest misconduct, if the above named police officials were allowed to continue in the police force, it would be detrimental to the public interest. Therefore, in order to send a clear message to such undesirable elements in the police force and to maintain discipline as well as to prevent recurrence of such incidents, it had become absolutely necessary to dismiss the applicant from service being completely 11 OA No.1696 /2024 Court No.2 (item No.44) unfit to continue further in police service. The contents of case FIR No. 11 dated 18.01.2024 u/s 384/120-B IPC P.S. Dasuya, Distt. Hoshiarpur, Punjab and the Preliminary Enquiry conducted into the matter had proved his involvement in this case. In the back drop of the position explained above, it is crystal clear that the applicant and HC (Exc.) (F.R.) Yogendra Singh No. 623/ND are persons of criminal mind and were hatching criminal conspiracy. Hence, under these compelling circumstances, it was constrained to take action under the provisions of Article 311 (2) (b) of the Constitution of India and it can be safely concluded that both the police officials had become a liability to the police department and needed to be dealt with sternly. Moreover, their further retention in the department after their involvement/ arrest was absolutely undesirable in the public interest, safety and security. Hence, exemplary action was to be taken against police personnel indulging in such criminal activities while performing their official duties. The respondents further states that after completion of the Preliminary Enquiry, in compliance of the Circulars 12 OA No.1696 /2024 Court No.2 (item No.44) issued from PHQ vide Nos. 5545-645/P.Cell/Vig, dated 11.09.2007 and 2513-2612/P. Cell (P. Misc.)/Vigilance, dated 18.04.2018, P.E. report was forwarded to Spl. CP/LÃO Div. Zone-II, Delhi seeking necessary concurrence to dismiss the applicant and HC (Exe.) (F.R.) Yogendra Singh No. 623/ND under Article 311 (2)
(b) of the Constitution of India and the same was approved by the Competent Authority. Accordingly (HC Manoj Jakhar, No. 1891/ND), the applicant and HC (Exe.) (F.R.) Yogendra Singh No. 623/ND were dismissed from the service vide order No. 400- 499/HAP/NDD (D-I), dated 06.02.2024 invoking the provisions of Article 311(2) (b) of the Constitution of India. Their suspension period from 18.01.2024 to the date of issue of dismissal order was decided as period "Not spent on duty for all intents and purposes". The punishment order was served upon the applicant on 19.02.2024 and the applicant submitted his Appeal on 26.02.2024. The Appellate Authority, after assessing all relevant aspects rejected in his appeal, vide order dated 01.04.2014, which reads as under:-
"I have carefully gone through the orders passed by the disciplinary authority and perused the contentions 13 OA No.1696 /2024 Court No.2 (item No.44) raised in his appeal filed by Ex-HC (Exe.) Manoj Jakhar, No. 1891/ND (PIS No. 28122004) as well as relevant record available on file. I have also heard him in O.R. on 26.03.2024 in accordance with principles of natural justice. During O.R., the appellant reiterated the same plea which he has already mentioned in his written appeal. In his written appeal, the appellant has mainly pleaded that the DE has not been conducted on the grounds that there is a reasonable belief that the witnesses may not come forward to depose against him. The appellant has also submitted various court order and judgments in support of his version. Further, he stated that he has been falsely implicated in this case as stated by the Disciplinary Authority, who has passed the dismissal order without following the due procedure of law as per Article 311 of Constitution of India. After accessing overall facts and circumstances of the case, the above act is so serious in nature that it would not be reasonably practicable to conduct a regular departmental enquiry against the appellant as there was reasonable belief that the witnesses may not come forward to depose against them owing to their influential positions. It was highly probable that during the entire process of departmental proceedings, the complainant and witnesses would be put under constant fear or threat to their person and property from the appellant. Under these circumstances, it was felt that conducting a regular D.E. against the appellant was not practicably possible. However, a P.E. into the matter was got conducted, which proved the involvement of the appellant in the above mentioned case. After having carefully examined the contentions of the appellant and the relevant material on record, I find that the Disciplinary Authority has arrived at the right conclusion and has given a speaking and reasoned order on the basis of relevant material on file. The punishment awarded by the Disciplinary Authority is in accordance with the rules applicable in such cases. Hence, I find no reason to interfere with the orders passed by the Disciplinary Authority vide No 400-499/HAP/NDD(D-1) dated 06.02.2024 as such the appeal submitted by Ex-HC (Exe.) Manoj Jakhar, No.1891/ND(PIS No.28122004), is hereby rejected after due consideration."
4. At the time of hearing, the learned counsel for the applicant Shri Ajesh Luthra has argued that the impugned order passed by the Disciplinary and 14 OA No.1696 /2024 Court No.2 (item No.44) Appellate Authorities are being passed without application of mind. The order of Disciplinary Authority is in utter violation of the principle of natural justice as laid down in the departmental rules and procedure. Under garb of Article 311 (2)(b) of the Constitution of India, without subjecting the applicant to departmentally enquiry, straightaway penalty of dismissal has been imposed and the applicant has been dismissed from service.
5. The learned counsel for the applicant also submits that admittedly the preliminary enquiry was conducted in order to construe that the allegations are true against the applicant that enquiry too is conducted at the back of the applicant. The relevant extract of the order of Disciplinary Authority dated 06.02.2024 is reproduced herein below:-
"....And whereas the E.O. has concluded that from the enquiry concluded so far, HC (Exc.) Manoj Jakhar No. 1891/ND (PIS No. 218122004) and HC (Exe.) Yogendra Singh No. 623/ND (PIS No. 28094159) were found involved in a criminal act of extortion along with their three other associates and a criminal case vide FIR No. 11/24 dated 18.01.2024 u/s 384/120-B IPC was registered against them at PS Dasuya Hosiyarpur, Punjab. The above act on the part of HC (Exe) Manoj Jakhar No. 1891/ND (PIS No. 28122004) and HC (Exe.) 15 OA No.1696 /2024 Court No.2 (item No.44) Yogendra Singh No. 623/ND (PIS No. 28094159) shows their involvement in corrupt practice and moral turpitude and dereliction in discharge of their official duties and gross misconduct on their part. This Incident has not only brought disrepute to the image of Delhi Police but has also tarnished and adversely affected the image of the police in the eyes of society. Hence, they need to be dealt with the severe departmental action as per the provisions of Delhi Police (Punishment & Appeal) Rules, 1980.
And whereas, the act committed by them has not only tarnished the image of Delhi Police and brought disgrace to the organization but also demoralized other police personnel. The misconduct committed by them has put the entire police force to shame. Such misconduct cannot be tolerated in any disciplined organization like Delhi Police, whose basic duty is to protect the life and property of the citizen of the society apart from upholding law of land.
And whereas, the act and circumstances of the case are so serious that it will not be reasonably practicable to conduct a regular departmental enquiry against the defaulters as there is reasonable belief that the witnesses may not come forward to depose against them owing to their influential positions. It also calls for great courage to depose against the desperate persons and the task become more acute and difficult where the police personnel could use their job to influence the statement of the witnesses. It is highly probable that during the entire process of departmental proceedings, the complainant and witnesses would be put under constant fear or threat to their person and property from the defaulters. Under these circumstances, I am personally satisfied that conducting a regular D.E. against the defaulter HCs is not practicably possible."
6. 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 16 OA No.1696 /2024 Court No.2 (item No.44) departmental enquiry after initiating departmental enquiry or findings of sufficient reasons /material, the Disciplinary Authority can come to the conclusion that departmental enquiry is not reasonably practicable. However, in the present case, only acting on the presumption and surmises, 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. He also states 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.
7. The learned counsel for the respondents pleaded that the respondents have given detailed justification of invocation of the Article 311 (2) (b) of 17 OA No.1696 /2024 Court No.2 (item No.44) the Constitution of India in their Disciplinary order and Appellate order. They repeatedly state that further continuation of the applicant in disciplined force like Delhi Police which is responsible for protecting the society and citizens of the country from immoral and disrespectable activities will rudely shake the faith of the citizens in Delhi Police Force. The applicant has acted highly unbecoming of Police Officer. Therefore, keeping in view the position in the matter, respondents have resorted to invocation of Article 311(2) (b) of the Constitution of India and dismissed the applicant from government service.
8. The Disciplinary Authority vide its order dated 06.02.2024 has dismissed the applicant invoking the provisions of Article of 311 (2) (b) of the Constitution of India. For facility of reference, the relevant portion of the ibid Disciplinary Authority is as follows:-
"....And whereas the E.O. has concluded that from the enquiry concluded so far, HC (Exc.) Manoj Jakhar No. 1891/ND (PIS No. 218122004) and HC (Exe.) Yogendra Singh No. 623/ND (PIS No. 28094159) were found involved in a criminal act of extortion along with their three other associates and a criminal case vide FIR No. 11/24 dated 18.01.2024 u/s 384/120-B IPC was registered against them at PS Dasuya Hosiyarpur, Punjab. The above act on the part of HC (Exe) Manoj 18 OA No.1696 /2024 Court No.2 (item No.44) Jakhar No. 1891/ND (PIS No. 28122004) and HC (Exe.) Yogendra Singh No. 623/ND (PIS No. 28094159) shows their involvement in corrupt practice and moral turpitude and dereliction in discharge of their official duties and gross misconduct on their part. This Incident has not only brought disrepute to the image of Delhi Police but has also tarnished and adversely affected the image of the police in the eyes of society. Hence, they need to be dealt with the severe departmental action as per the provisions of Delhi Police (Punishment & Appeal) Rules, 1980.
And whereas, the act committed by them has not only tarnished the image of Delhi Police and brought disgrace to the organization but also demoralized other police personnel. The misconduct committed by them has put the entire police force to shame. Such misconduct cannot be tolerated in any disciplined organization like Delhi Police, whose basic duty is to protect the life and property of the citizen of the society apart from upholding law of land.
And whereas, the act and circumstances of the case are so serious that it will not be reasonably practicable to conduct a regular departmental enquiry against the defaulters as there is reasonable belief that the witnesses may not come forward to depose against them owing to their influential positions. It also calls for great courage to depose against the desperate persons and the task become more acute and difficult where the police personnel could use their job to influence the statement of the witnesses. It is highly probable that during the entire process of departmental proceedings, the complainant and witnesses would be put under constant fear or threat to their person and property from the defaulters. Under these circumstances, I am personally satisfied that conducting a regular D.E. against the defaulter HCs is not practicably possible."
And whereas after having committed above gravest conduct, if the above named police officials are allowed to continue in the police force, it would be detrimental to public interest and further tarnish the image of police force in society. Therefore, in order to send a clear message to such undesirable elements in the police force and to maintain discipline as well as to prevent 19 OA No.1696 /2024 Court No.2 (item No.44) recurrence of such incidents, it has become absolutely necessary to dismiss HC (Exe) Manoj Jakhar No. 1891/NDS/HC (Eve) (FR) Yogendra Singh No. 623/ND from service as they are completely unfit to continue further in police service. The contents of case FIR No. 11 dated 18.01.2024 u/s 384/120-8 IPC P.S. Dasuya, Distt. Hoshiarpur, Punjab and the Preliminary Enquiry conducted into the matter have proved their involvement in this case.
And whereas, in the back drop of the position explained above, it is crystal clear that HC (Exe.) Manoj Jakhar No. 1891/ND & HC (Exe.) (F.R.) Yogendra Singh No. 623/ND are persons of criminal mind and were hatching criminal conspiracy. Hence, under these set of compelling circumstances, I am constrained to take action under the provisions of article 311 (2) (b) of the Constitution of India in this case for the sake of justice. On the basis of gravity of case, it can be safety concluded that both the police officials have become a ability to the police department and needs to be dealt with heavy hand. Moreover, their further retention in the department after the Involvement/arrest in the above mentioned case is absolutely undesirable in the public interest, safety and security. Exemplary action needs to be taken against police personnel indulging in such criminal activities while performing their official duties.
And whereas after completion of the Preliminary Enquiry, in compliance of the Circulars issued from PHQ vide Nos. 5545-645/P Cell/Vig., dated 11.09.2007 and 2513-2612/P. Cell (P. Misc.)/Vigilance, dated 18.04.2018, the P.E. report was forwarded to Spl. CP/L&O Div./Zone-II, Delhi for seeking necessary concurrence to dismiss HC (Exe) Manoj Jakhar No. 1891/ND & HC (Exe.) (F.R.) Yogendra Singh No. 623/ND under article 311 (2) (b) of the Constitution of India and the same has been approved by the Competent Authority.
Therefore, 1, Ravikant Kumar, Addl. Deputy Commissioner of Police-L. New Delhi Distt., New Delhi, do, hereby dismiss HC (Exe.) Manoj Jakhar No. 1891/ND and HC (Exe.) (F.R.) Yogendra Singh No. 623/ND from the service with immediate effect under 20 OA No.1696 /2024 Court No.2 (item No.44) Article 311(2) (b) of the Constitution of India. Their suspension period from 18.01.2024 to the date of issue of this order is decided as period "Not Spent On Duty"
for all intents and purposes."
9. Aggrieved by the aforesaid impugned order dated 06.02.2024, the applicant made an appeal. The Appellate Authority passed an order dated 01.04.2024 whereby statutory appeal of the applicant was rejected; wherein the appellate authority does not consider thesubmissions and please raised within the body of statutory appeal and rejected on arbitrary grounds thus making the said order bad in law. For facility of reference, it would be appropriate to mention relevant portion of Appellate-order which reads as follows:-
"I have carefully gone through the orders passed by the disciplinary authority and perused the contentions raised in his appeal filed by Ex-HC (Exe.) Manoj Jakhar, No. 1891/ND (PIS No. 28122004) as well as relevant record available on file. I have also heard him in O.R. on 26.03.2024 in accordance with principles of natural justice. During O.R., the appellant reiterated the same plea which he has already mentioned in his written appeal. In his written appeal, the appellant has mainly pleaded that the DE has not been conducted on the grounds that there is a reasonable belief that the witnesses may not come forward to depose against him. The appellant has also submitted various court order and judgments in support of his version. Further, he stated that he has been falsely implicated in this case as stated by the Disciplinary Authority, who has passed the dismissal order without following the due procedure of law as per Article 311 of Constitution of India. After accessing overall facts and circumstances of the case, the above act is so serious in nature that it 21 OA No.1696 /2024 Court No.2 (item No.44) would not be reasonably practicable to conduct a regular departmental enquiry against the appellant as there was reasonable belief that the witnesses may not come forward to depose against them owing to their influential positions. It was highly probable that during the entire process of departmental proceedings, the complainant and witnesses would be put under constant fear or threat to their person and property from the appellant. Under these circumstances, it was felt that conducting a regular D.E. against the appellant was not practicably possible. However, a P.E. into the matter was got conducted, which proved the involvement of the appellant in the above mentioned case. After having carefully examined the contentions of the appellant and the relevant material on record, I find that the Disciplinary Authority has arrived at the right conclusion and has given a speaking and reasoned order on the basis of relevant material on file. The punishment awarded by the Disciplinary Authority is in accordance with the rules applicable in such cases. Hence, I find no reason to interfere with the orders passed by the Disciplinary Authority vide No 400-499/HAP/NDD(D-1) dated 06.02.2024 as such the appeal submitted by Ex-HC (Exe.) Manoj Jakhar, No.1891/ND(PIS No.28122004), is hereby rejected after due consideration."
10. Disciplinary Authority and Appellate Authority have come to the decision on the presumption that alleged offence has been committed by the applicant, so there is no need to conduct the departmental enquiry, these reasons cannot stand to the scrutiny of law for invoking the power under provision of Article 311(2) (b) of the Constitution of India. It needs to be tested whether the reasons recorded in the impugned order for imposition of Article 311 (2) (b) of the Constitution of India are justifiable or the provisions of above mentioned Article of the Constitution of India are 22 OA No.1696 /2024 Court No.2 (item No.44) invoked only to avoid the disciplinary enquiry and get rid of the applicant in convenient manner.
11. The Disciplinary Authority did not mention the reasonable grounds even when Preliminary Enquiry was ordered against the applicant. It could be seen from the appellate order that Appellate Authority had rejected the appeal in mechanical manner without addressing specific submissions of the applicant and merely on presumptions that the allegation against the applicant is presumed to be proved as arguments like witness might not have come forward to depose against the applicant has been cited. The Appellate Authority is simply assuming that the allegations against the applicant stand proved and this justification is good enough to invoke Article 311 (2) (b) of the Constitution of India to dismiss the applicant. The Appellate Authority did not explore in the present case that the majority of the witnesses are official witnesses. If preliminary enquiry is possible, then the departmental enquiry is also possible. Similarly, if the trial is possible then the departmental enquiry is also possible. However, both disciplinary authority and appellate authority did not 23 OA No.1696 /2024 Court No.2 (item No.44) make any efforts to conduct departmental enquiry and resorted to invocation of provision of Article 311 (2) (b) of the Constitution of India and imposed penalty of dismissal. This could be construed as a strong bias of respondents against the applicant and their disdainful approach to uphold Rule of Law.
12. The respondents being Senior Police Officers holding high positions are required to run the administrative decision making lawfully. A serious course correction is needed. Leaving this argument here for pondering competent authority, we move forward.
13. In the recent matter decided on 14.08.2024 by the Hon'ble High Court of Delhi in W.P.(C) No.11276/2024 and CM Appl. 46705/2024. CM Appl. 46706/2024 in the matter of The Commissioner of Police & Ors. vs OM Prakash & anr., wherein the Commissioner of Police has been directed by the High Court of Delhi to look into the matters where Article 311(2)(b) of the Constitution of Indiahas been invoked by the police authorities and police personnel have been removed from the service. On presumptions and assumptions without any material, coming to the 24 OA No.1696 /2024 Court No.2 (item No.44) conclusion or that it was not reasonably practicable to conduct regular departmental enquiry as witness might not come forward to decide the case and Appellate Authority depose against a police officer respondents have rejected the appeal which could be construed as bad in law. It is apparent that the Disciplinary Authority has assumed as if the allegations made in criminal case (FIR) already stand proved and thus with this presumptions, the present impugned order has been passed. Once the order of Disciplinary Authority is based on assumption as if the allegations made against the applicant already stand proved that too on the content of FIR, the same act is enough to vitiate the order of Disciplinary Authority as the same being bad in law as being based on assumptions, suspicion and surmises. Further, the Disciplinary Authority is assuming that the offence has been committed by the applicant. Under this assumption, the present order of Disciplinary Authority is being passed invoking Article 311(2)(b) of the Constitution of India. There are circulars, judgment of judicial forums which clearly states that if the allegations are grave then more 25 OA No.1696 /2024 Court No.2 (item No.44) 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 Article 311(2)(b) of the Constitution of India. The reasoning recorded by the Disciplinary Authority is based on suspicion and surmises. There is no occasion for the disciplinary authority to record that in the present case departmental enquiry is not reasonably practicable. The usage of expression like as there is a "reasonable belief" itself shows that the reasoning is based on suspicion and surmises. The reasoning recorded by Disciplinary Authority for dispensing away the departmental enquiry has been dealt by this Tribunal in various OAs qua the same department i.e. Delhi Police. It is observed that most of the witnesses are official witnesses 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 26 OA No.1696 /2024 Court No.2 (item No.44) 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.
14. The applicant is a Head Constable in Delhi Police. It is middle rung among the subordinate officers thus it is absolutely wrong to record that applicant is in any position to influence or threaten any witness when most of the witnesses are police officer. There is no admissible material or evidence before the authorities to conclude that the witness is threatened or intimidating or will not depose in departmental enquiry and thus reason recorded for dispensing the Departmental Enquiry under Article 311 (2) (b) of Constitution of India are not tenable. As stated above, the applicant is only Sub-Inspector (exe) 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 27 OA No.1696 /2024 Court No.2 (item No.44) 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) of the Constitution of India has been adopted as a convenient method in the present case. There is no material in hand of Disciplinary Authority while passing the impugned order which could even suggest that witness or complainant will not come in Departmental Enquiry. The impugned order is passed with the presumption that the allegations are proved against the applicant. In such a situation, Article 311(2)
(b) of the Constitution of India cannot be invoked on the same as it amounts to abuse of process of law.
15. In the public interest and even as per Rule of law, it was incumbent upon the authorities not to put to use Article 311(2)(b) of the Constitution of India in the present case and 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 28 OA No.1696 /2024 Court No.2 (item No.44) his defence in regular Departmental Enquiry until and unless the same is not reasonably practical. The reasons recorded in present impugned order to dispense away with the Departmental Enquiry are just not tenable in the eyes of law and Article 311(2)(b) of the Constitution of India has been used as a short cut method. Admittedly in the present case, a Preliminary Enquiry was conducted through ACP, Sub-Division, Barakhamba Road, 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 has allowed many petitions in respect of Article 311(2)(b) of the Constitution of India on the same ground. The Hon'ble Tribunal recently qua the same respondents have passed the judgments whereby the order of dismissal from service under Article 311(2)(b) of Constitution of India has been quashed and set aside on the ground that if PE is possible then DE is also possible.
16. There is no attempt to initiate departmental enquiry as nothing has been brought on record, 29 OA No.1696 /2024 Court No.2 (item No.44) subsequent to the allegation that the applicant has made any attempt to influence the witness and thus the reasonable belief is based merely on suspicion and surmises. The reasoning to dispense with the departmental enquiry cannot be based on suspicion and surmises and probability. Once the Disciplinary Authority records that there is a probability that complainant and witness are put on constant fear and threat for dispensing away with departmental enquiry, the onus to establish that such situation prevails, is based on the efforts made by them to conduct departmental enquiry and imminent failure to hold the said departmental enquiry due to such actions of the applicant. Therefore, while taking no action to conduct disciplinary enquiry and citing reasons of giving threat to witnesses etc., are the reasoning based on mere probability, suspicion and surmises. There was no material placed before the authority to come to this conclusion and to invoke Article 311(2)(b) of the Constitution of India.
17. The power under Article 311(2)(b) of the Constitution of India has been invoked subsequent to a 30 OA No.1696 /2024 Court No.2 (item No.44) preliminary enquiry. The object of conducting the preliminary enquiry for invoking the power under Article 311(2)(b) of the Constitution of India is being laid down in circular dated 11.09.2007. The reason for dispensing the departmental enquiry are on suspicion and surmises and no such material even through preliminary enquiry is being placed before any of the authorities on the basis of which the conclusion would be drawn whether the departmental enquiry is not practicable or even remotely supports the vague reasons recorded to dispense away with the departmental enquiry have been cited. The cases in which preliminary enquiry is being conducted, but in absolute violation of circular dated 11.9.2007 and the Disciplinary Authority passed an order under Article 311(2)(b) of the Constitution of India, is in violation of circular dated 11.9.2007 which was framed by department in pursuance of judgment of Hon'ble Tribunal in case of Suresh Kumar Vs. GNCTD in OA No-2500/2006.
31OA No.1696 /2024 Court No.2 (item No.44)
18. The Appellate Authority records that Preliminary Enquiry into the matter was conducted by ACP, Sub-Division, Barakhamba Road. The facts and circumstance of the case were such that it was not reasonably practicable to conduct a regular departmental enquiry, cannot be a ground to invoke the Article 311(2)(b) of the Constitution of India. The copy of preliminary enquiry report is not supplied to the applicant nor the applicant has been part of the preliminary enquiry but onthe contrary, if Preliminary Enquiry is possible then even the departmental enquiry is also possible and in such cases the Article 311(2)(b) of the Constitution of India is not invoked. The applicant is placing reliance on the judgment of Hon'ble Tribunal decided on 23.4.2018 whereby the Hon'ble Tribunal after relying the judgment of Tarsem Singh of Hon'ble Apex Court this 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 32 OA No.1696 /2024 Court No.2 (item No.44) 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 decisionregarding 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. "
19. In the present case when the P.E. is possible then even a Departmental Enquiry is also possible and thus the reasoning recorded by the Disciplinary Authority for dispensing with the D.E. is bad in law. The disciplinary authority did not even make the slightest possible effort toinitiate 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. 33 OA No.1696 /2024 Court No.2 (item No.44)
20. The disciplinary authority failed to apply its mind that the power under Article 311 (2)(b) of the Constitution of India has to be exercised with a pre- condition. The pre-condition is that if a disciplinary enquiry is not reasonably practical, the Disciplinary Authority has to record reasons. The present reasoning is based on the assumption that the applicant has committed the alleged crime and thus departmental enquiry is not required. The Disciplinary Authority on the presumption that the act committed by the applicant is so grave that it is practically not feasible to conduct enquiry, hence, came to conclusion that there is no need to conduct the departmental enquiry and invoked the power under Article 311 (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 imminentfactor in deciding whether power under Article 311 (2)(b) of the Constitution of India is to be invoked or not.
21. The present case is a case of absolute misuse of power vested in the Disciplinary Authority under 34 OA No.1696 /2024 Court No.2 (item No.44) Article 311 (2) (b) of Constitution of India and hence bad in law. The reasons recorded by the authorities to dispense away with the departmental enquiry does not withstand the scrutiny of law. The so called reasons recorded by the authorities in the impugned order to invoke the power under the Article 311(2)(b) of the Constitution, as being mentioned, are only to avoid the departmental enquiry. It is a well settled law that without conducting any departmental enquiry, if the finding of guilt against the applicant has been arrived at, the same act is enough to vitiate the order of the disciplinary authority. There is a finding of guilt against the applicant without conducting the Departmental Enquiry and further not even giving the opportunity to the applicant to put forward his defense and the same is enough to vitiate the order of the disciplinary authority. The authorities failed to consider that no substantial material has been collected to come onto a conclusion that witnesses 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 35 OA No.1696 /2024 Court No.2 (item No.44) a short cut method of dismissing the applicant by invoking the power under Article 311 (2)(b) of Constitution of India only keeping in mind the gravity of the allegations.
22. The applicant preferred an appeal against the punishment order of dismissal from services on 06.02.2024. The Appellate Authority rejected the appeal on 01.04.2024 by an absolutely non-speaking and mechanical order. The Appellate Authority failed to apply its mind that the law quoted by the applicant in the statutory appeal clearly establishes that the reasons recorded for dispensing away with the DE are not legally tenable in the eyes of law. The present case is not a case for invoking the power under Article 311(2)(b) of the Constitution of India. The Hon'ble Apex Court has laid down clearly that the gravity of the charge will not be a tilting factor in deciding whether a Departmental Enquiry is a reasonably practicable or not. The more graver the charge the opportunity to defend himself should be more.
23. The applicant has placed reliance on the order dated 13.12.2023 passed by this Tribunal in the 36 OA No.1696 /2024 Court No.2 (item No.44) 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 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 OANo.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 noreason at all has been recorded in this regard and theapplicant is guilty of committing grave misconduct andwas 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, 37 OA No.1696 /2024 Court No.2 (item No.44) including in one referred to hereinabove.
11. In view of the aforesaid facts and circumstances of the present case, we are of the considered view that the instant OA is squarely covered by the common 19 OA No.1019/2023 Order/Judgment dated 10.2.2022 in Ct. Sumit Sharma (supra) and a batch of cases. Therefore, the present OA deserves to be partly allowed and hence, the same is partly allowed with the following directions:- (i) Orders dated 03.10.2022 (Annexure A/1) and dated 10.3.2023 (Annexure A/2) passed by the disciplinary and appellate authorities respectively are set aside; (ii) The applicant shall be entitled to all consequential benefits in accordance with the relevant rules and law on the subject; (iii) The respondents shall implement the aforesaid directions within eight weeks of receipt of a copy of this order; and (iv) However, the respondents shall be at liberty to initiate disciplinary proceedings against the applicant in accordance with the law. 12. However, in the facts and circumstances, there shall be no order as to costs."
24. The order of this Tribunal was challenged in the Hon'ble High Court of Delhi in W.P.(C) 2407/2024 in the matter of Govt. of Delhi and Ors. Vs. Dushyant Kumar. The Honble High of Delhi dismissed the Writ Petition being meritless. The relevant portion of the said judgment is as under:-
"14. In the light of the aforesaid, we have no hesitation in concurring with the Tribunal that the petitioners' decision to dispense with the enquiry was wholly unsustainable. The petitioners appear to have proceeded on an erroneous presumption that merely because a criminal case has been registered against the 38 OA No.1696 /2024 Court No.2 (item No.44) respondent, he was to be treated as guilty of the misconduct. No doubt, the respondent is a police officer, whose misconduct can never be condoned, but this would not imply that the principles of natural justice should be given a complete go by. As noted hereinabove, the petitioners have not given any valid reason for dispensing with the enquiry except for repeatedly stating that the respondent is guilty of serious misconduct. This course of action, in our view, is completely impermissible.
15. Before we conclude, we may also consider the decision in Ajit Kumar Nag (supra) relied upon by the petitioners. We, however, find that instead of forwarding the case of the petitioners, the said decision supports the case of the respondent. It would, therefore, be apposite to refer to paragraph no.44 of the said decision, which reads as under:-
"44. We are aware of the normal rule that a person must have a fair trial and a fair appeal and he cannot be asked to be satisfied with an unfair trial and a fair appeal. We are also conscious of the general principle that pre- decisional hearing is better and should always be preferred to post-decisional hearing. We are further aware that it has been stated that apart from Laws of Men, Laws of God also observe the rule of audi alteram partem. It has been stated that the first hearing in human history was given in the Garden of Eden. God did not pass sentence upon Adam and Even before giving an opportunity to show cause as to why they had eaten the forbidden fruit. (See R. v. University of Cambridge [(1723) 1 Str 557 : 93 ER 698] .) But we are also aware that the principles of natural justice are not rigid or immutable and hence they cannot be imprisoned in a straitjacket. They must yield to and change with exigencies of situations. 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 39 OA No.1696 /2024 Court No.2 (item No.44) [(1990) 1 SCC 613] (Bhopal Gas Disaster), SCC p. 705, para 124.] While interpreting legal provisions, a court of lawcannot be unmindful of the hard realities of life. In our opinion, the approach of the Court in dealing with such cases should be pragmatic rather than pedantic, realistic rather than doctrinaire, functional rather than formal and practical rather than "precedential"."
16. We are, therefore, of the considered view that the petitioners have not only ignored the decisions of the Apex Court laying down the parameters for applicability of Article 311(2)(b) of Constitution of India, but have also ignored their own circulars dated 21.12.1993 and 11.09.2007. We, therefore, find no infirmity with the impugned order.
17. The writ petition being meritless is, accordingly, dismissed with all pending applications."
25. In the order dated 16.04.2024 542/2023 in OA 591/2023 passed in case of Deepk vs. Govt.of NCT of Delhi & Ors of this Tribunal. The Tribunal held as under:-
" 20. In the present case, as apparent from the reasons recorded by the respondents in the impugned order, it is apparent that the respondents have arrived at the conclusion for dispensing with the regular inquiry due to the involvement of the applicants in a grave and serious case. The respondents have jumped to the conclusion that on account of serious allegations, the applicants have become ineligible to be continued in police force. There is no finding that the 24 Item No. 35 & 36 Court-2 OA No. 542/2023 & 591/2023 applicants and/or anybody on their behalf have at any point of time even attempted to influence or coerce 40 OA No.1696 /2024 Court No.2 (item No.44) any of the witness. Even there is no finding that the applicants in the captioned OAs who are very junior officers under the respondents were in a position to influence the witnesses who are generally senior officials working in the Government of India and particularly in CBI. It is also nowhere recorded by the respondents as to how if not only preliminary inquiry was found possible, but also the criminal trial is possible in the said case FIR with the support of more than nineteen witnesses and at no point of time the prosecution has even felt that those witnesses are not likely to turn up and regular inquiry was not possible in the matter. It is undisputed that regular inquiry is a Rule whereas dispensing with the same is only an exception. Though the respondents have recorded that if regular inquiry is initiated, the same is liable to take a long time, however, no reason has been given for the same and it is apparent that such reasoning and finding is based on surmises and conjectures. 25 Item No. 35 & 36 Court-2 OA No. 542/2023 & 591/2023
21.In view of the aforesaid, we find that the impugned orders are not sustainable in the eyes of law. Accordingly, the OAs are allowed with the following order(s):- (i) impugned orders dated 10.08.2022 and 25.01.2023 are set aside. The applicants shall be reinstated in service forthwith. (ii) the applicants shall be entitled for all consequential benefits in accordance with relevant rules and instructions on the subject. (iii) the aforesaid directions shall be complied with by the respondents as expeditiously as possible and preferably within a period of eight weeks 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." 41 OA No.1696 /2024 Court No.2 (item No.44)
26. In Writ Petition (C) No. 1258/2023 & CM App.No.4759/2023 in the case of Commissioner of Police Delhi Police & Ors. Vs. Manjeet; The Hon'ble High Court of Delhi vide its judgment dated 22.04.2024 hasheld 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. Thisin 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 42 OA No.1696 /2024 Court No.2 (item No.44) passing cryptic orders dispensing with the enquiry in the most mechanical manner.
11. No doubt, the respondent is a police personnel and any misconduct on his part is liable to be dealt with appropriately. This, however, does not imply that the petitioners could, on the basis of the gravity of the charges levelled against him, with an enquiry on absolutely vague grounds. As noted hereinabove, the petitioners have given no reason whatsoever in the impugned order for dispensing with the inquiry. The impugned order of dismissal proceeds on the basis that the respondent's guilt had already been proved in the preliminary enquiry. Furthermore, it is not as if the respondent has been let off without any departmental action being taken against him, as the learned Tribunal has already granted time to the petitioners to initiate departmental proceedings against him as per law.
12. For the aforesaid reasons, we find no reason to interfere with the impugned order. The writ petition being meritless is dismissed along with all applications.
13. Before we conclude, we are constrained to observe that in a large number of petitions filed by the Commissioner of Police which are coming up before this Court, we are finding termination orders are being passed by the petitioners by dispensing with departmental enquiries in a most mechanical manner without recording any valid reasons. We, therefore, direct that a copy of this order be placed before the Commissioner, Delhi Police to ensure that in future, enquiries are not dispensed with without assigning justifiable reasons."
27. 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 hasheld as under:-
43OA No.1696 /2024
Court No.2 (item No.44) "10. From a perusal of the aforesaid, we find that the petitioners have proceeded to dispense with the enquiry against the respondent only because of the grave nature of allegations levelled against him and have simply observed that since the respondent had lowered the image of the police department and goodwill of a uniformed organisation, an exemplary punishment of dismissal ought to be imposed upon him so as to send a clear message to undesirable persons and to prevent reoccurrence of such crimes. In the light of the aforesaid, we find absolutely no reason to differ with the conclusion arrived at by the learned Tribunal that the dismissal order passed by the petitioners did not contain any justifiable reason whatsoever for dispensing with the enquiry. What clearly emerges is that the petitioners have proceeded on the premise that such police officers, who are charged with serious misconduct, should be immediately dismissed from service. This approach, in our view to dispense with an enquiry, would not meet the parameters laid down under Article 311(2) (b) of the Constitution of India.
11. At the cost of repetition, we may reiterate that merely because the respondent was a police personnel, would not entitle the petitioners to give a complete go-bye to the requirement of holding a departmental enquiry against him without recording any justifiable reasons as to why departmental enquiry could not be held against him.
12. For the aforesaid reasons, we find no infirmity with the impugned order. The writ petition, being meritless, is along with accompanying application,dismissed."
28. In the Special Leave to Appeal (C) No. 11681/2024 filed by the Commissioner of Police & Anr. Vs. Jagmal Singh, The Hon'ble Apex Court vide its judgment on 10.07.2024 has dismissed the 44 OA No.1696 /2024 Court No.2 (item No.44) said SLP and the judgment of Hon'ble Court of Delhi attained finality.
29. In another matter, the Hon'ble High Court of Delhi in W.P.(C) No. 5562/2024, CAV 181 /2024 CM Appl.22929/2024 vide its judgment dated 23.04.2024 in the case of Commissioner of Police and ors. Vs. Sant Ram, the Hon'ble High Court of Delhi in para 9 to 12 has heldas 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 45 OA No.1696 /2024 Court No.2 (item No.44) a regular enquiry or to hold him guilty without conducting the statutorily prescribed departmental enquiry and that too in a matter like the present where the complainant and the witnesses are also police personnel. In fact, what emerges is that on the basis of the report of the preliminary enquiry itself, the petitioners presumed that the respondent was guilty of serious misconduct and therefore deserved to be dismissed at the earliest. This in our considered view, as has been rightly held by the learned Tribunal, could not be treated as a ground to reach a conclusion that it was not reasonably practicable to hold an enquiry against the respondent. This course of action, in our considered opinion, was clearly violative of Article 311(2)(b) of the Constitution of India.
11. No doubt, the respondent is a police personnel and any misconduct on his part is liable to be dealt with appropriately. This, however, does not imply that the petitioners could, on the basis of the gravity of the charges levelled against him, dispense with the requirement of an enquiry on absolutely vague grounds. As noted hereinabove, the petitioners have given no reason whatsoever in the impugned order for dispensing with the inquiry. The impugned order of dismissal proceeds on the basis that the respondent's guilt had already been proved in the preliminary enquiry and had also been admitted by him. We therefore have no hesitation in agreeing with the learned Tribunal that the petitioners have dispensed with the enquiry only on the basis of a perceived notion that the respondent being a police personnel, W.P.(C) 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 46 OA No.1696 /2024 Court No.2 (item No.44) reason to interfere with the impugned order. The writ petition being meritless is dismissed along with allaccompanying applications.
30. In pursuance to the order of this Tribunal in OA No.14/2018 titled as Sant Ram vs. Commissioner of Police and the judgment of the Hon'ble High Court of Delhi in W.P.(C) 5562/2024, CAV 181/2024 CM Appl.
No.22929/2024, the respondents reinstated the services of the applicant Shri Sant Ram in that case.
The order dated 26.07.2024 is reproduced as under;-
In pursuance of judgment dated 06.02.2024 passed by the Principal Bench of Hon'ble Mr. R.N. Singh, Member (J) & Hon'ble Mr. Sanjeeva Kumar, Member (A), Central Administrative Tribunal, New Delhi in 0.A. No.14/2018 titled Sant Ram Vs. Commissioner of Police, Delhi & Ors. and judgment dated 23.04.2024 passed by the Hon'ble Ms. Justice Rekha Palli & Hon'ble Mr. 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 Policeforce under Article311(2(b) of 47 OA No.1696 /2024 Court No.2 (item No.44) Constitution of India deciding his suspension period as period not spent on duty and the order passed by the Appellate Authority vide No.106- 66/SO/Jt.C.P/Trg, dated 03.11.2017 rejecting his appeal, are set aside. Accordingly, Const. (Exe.) Sant Ram, No.324/PTC (PIS No.28060573) is hereby re- instated in service from dismissal with immediate effect without prejudice to the further departmental action to be taken against him in accordance with the law. He is deemed to be under suspension from the date of his dismissal as he had already been placed under suspension vide D.D.No.29-A/PTC/JK dated 22.07.2017 and formal issued vide order No.1738- 70/HAP/PTC (DA-II) dated 26.07.2017. His dismissal/suspension period will be decided later on.Let Const. (Exe.) Sant Ram, No.324/PTC (PIS No.28060573) be informed accordingly.
31. 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.48 OA No.1696 /2024
Court No.2 (item No.44) Sub: W.P. (C) No. 1258/2023 & CM Appl. No. 4759/2023 in the matter of Commissioner of Police, Delhi vs. Manjeet.
Memo Enclosed please find here with a copy of letter No. 10264/W/DHC/ Writs/D-9/2023 dated 26.04.2024 received from the Registrar General, Delhi High Court alongwith copy of the order dated 22.04.2024 wherein the Hon'ble has observed that "
in large number of petitions filed by the Commissioner of Police which are coming up before the this Court, we are finding termination orders are being passed b y the petitioners by dispensing with departmental enquiries in a most mechanical manner without recording any valid reasons. We, therefore, direct that a copy of this order be placed before the Commissioner of Police, Delhi to ensure that in future, enquiries are not dispensed with without assigning justifiable reasons.
It is, therefore, requested that the aforementioned directions of the Hon'ble High Court of Delhi shall be taken into consideration before passing termination orders by dispensing with the departmental enquiries in future.
This issues with the approval of Commissioner of Police, Delhi.
(Hareesh H.P) Deputy Commissioner of Police Legal Division/ PHQ, Delhi"
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:-49 OA No.1696 /2024
Court No.2 (item No.44) "The respondents, after considering the provisions of Article 311(2)(b) of the Constitution of India and the judgment of the Hon'ble Apex Court in the case of Tulsiram Patel (supra) and the Order(s)/Judgment(s) passed by this Tribunal have issued another circular dated 11.9.2007 (Annexure A/13 of the rejoinder filed in OA 467/2020). In the said circular, they have emphasized that the disciplinary authority should pass a speaking order(s) based and supported by material/facts on record for dispensing with prior inquiry and before passing such order(s), the disciplinary authority should be satisfied that it is not practicable to hold an inquiry in view of threat, inducement, intimidation, affiliation with criminals etc. and the disciplinary authority has no option but to resort to Article 311(2)(b) of the Constitution of India. The said circular dated 11.9.2007 reads as under:-
"CIRCULAR No. /2007 An analysis has been done by PHQ in 38 cases pertaining to the period between 1.1.2000 to 31.12.05 where action under Article 311 (2) (b)of the Constitution of India was taken against the defaulters. The analysis shows that out of the 38 cases, the action of the department has been upheld by CAT only in two cases and out of these two cases and only one case action was upheld by the Hon'ble High Court of Delhi and most of these cases have been remanded back in the Department by the Tribunal for initiating departmental inquiry.
Though some cases are still pending in the Hon'ble High Court for decision, in a majority of cases, Disciplinary Authorities have resorted to Article 311 (2) (b) on assumptions and conjectures. No speaking orders were passed based on and supported by material/facts on record for dispensing with prior enquiry. 50 OA No.1696 /2024 Court No.2 (item No.44) 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"
32. The Hon'ble High Court of Delhi in WP (C) No. 11276 /2024 and CM Appl.
No.46705/2024, CM Appl. No. 46706/2024 in the matter of The Commissioner of Police & Ors. vs. OM Prakash & Anr. decided on 14.08.2024 51 OA No.1696 /2024 Court No.2 (item No.44) has taken a serious cognizance of the order passed by the Disciplinary Authority in which Delhi Police resorting to invocation of Article 311(2) (B) of the Constitution of India. For facility of reference, the relevant portion of above mentioned judgment is as follow:-
"20. Accordingly, finding no error in the impugned order passed by the learned Tribunal, the present petition is dismissed.
21. Before parting with this matter, we hereby direct the Commission of Police Delhi to personally look into such matters and take proper decision so that Courts/Tribunals are not burdened with a case where departmental inquiries can be initiated. We hereby make it clear that if such like petitions are filed in future wherein dismissal or suspension orders are passed without holding any enquiry without any plausible reasoning, certainly heavy cost will be imposed and that too, will be recovered from the Officer, who takes such type of unwarranted decision.
22. A copy of this order be transmitted to the Commissioner of Delhi Police for information and compliance."
33. Having regard to the above, we are of the view that impugned orders passed by the respondents are not only in violation of the settled law but also of their own circular dated 11.9.2007 and 13-5-2024. The reasons given by the respondents for dispensing with the enquiry are not in consonance 52 OA No.1696 /2024 Court No.2 (item No.44) with the law settled by the Hon'ble Supreme Court and Hon'ble High Court(s) and followed by this Tribunal in a catena of cases, a few of which are referred to hereinabove.
34. In view of the aforesaid facts and circumstances of the present case, we are of the considered view that the instant OA deserves to be partly allowed and the same is partly allowed with the following directions:-
(i) Orders dated 01.04.2024 (Annexure A-1) and dated 06.02.2024 (Annexure A-2) passed bythe 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 instructions on the subject;
(iii) The respondents shall implement the aforesaid direction within eight weeks of receipt of a copy of this order;53 OA No.1696 /2024
Court No.2 (item No.44)
(iv) However, the respondents shall be at liberty to initiate disciplinary proceedings against the applicant in accordance with the law; and
(v) There shall be no order as to costs.
Pending MAs, if any, stand closed.
(Rajinder Kashyap) (R. N. Singh)
Member (A) Member (J)
/mk/