Central Administrative Tribunal - Delhi
Ram Khilari vs Comm. Of Police on 24 April, 2024
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Item No. 65
Court-2 OA No. 2809/2021
Central Administrative Tribunal
Principal Bench, New Delhi
OA No. 2809/2021
This the 24th day of April, 2024
Hon'ble Mr. R.N. Singh, Member (J)
Hon'ble Mr. Sanjeeva Kumar, Member (A)
Ram Khilari, Ex. Const.
Aged about 31 years
S/o Sh. Gainda Lal Meena
R/o Village and post office Prithvi Pura
Malakhera, Tehsil Alwar Rajasthan
... Applicant
(By ADVOCATE: Sh. M.K. Bhardwaj)
VERSUS
Commissioner of Police & Ors.
1. The Commissioner
Police Headquarters
IP Estate, New Delhi-110001
2. The Joint Commissioner of Police
Northern Range, Delhi-110001
3. The Dy. Commissioner of Police
Rohini District, Delhi-110085
... Respondents
(By Advocate: Sh. Amit Yadav for Sh. Amit Anand)
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Item No. 65
Court-2 OA No. 2809/2021
O R D E R (ORAL)
Hon'ble Mr. R.N. Singh, Member (J) By way of the present Original Application (OA) filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has challenged an order dated 26.11.2020 (Annexure A-1) vide which the respondents have dismissed the applicant from service by invoking the provisions of Article 311(2)(b) of the Constitution of India. The applicant has also challenged an order dated 05.07.2021 which has been passed by the Appellate Authority on his appeal against the impugned order dated 26.11.2020.
2. The applicant in the present OA has prayed for the following reliefs:
"(i) To quash and set aside impugned order 26.11.2020 (Annexure A-1) and order No.8681-
95/HAP(P-1)/RD dated 05.07.2021 and reinstate the applicant in service with all consequential benefits including the arrears.
(ii) to declare the action of respondents in dismissing him from service without holding regular inquiry as per Rule 16 of Delhi Police (Punishment & Appeal) Rules 1980 and accordingly set aside the impugned orders.
(iii) to allow the OA with cost.
(iv) Any other orders may also be passed as this Hon'ble Tribunal may deem fit and proper in the existing facts and circumstances of the case." 3 Item No. 65 Court-2 OA No. 2809/2021
3. In response to notice, the respondents have filed counter reply and have disputed and contested the claim of the applicant and have also prayed for dismissal of the OA with cost against the applicant and in their favour.
4. We have heard the learned counsels for the parties and with their assistance, we have perused the pleadings available on record.
5. The undisputed facts are that the applicant joined the services of the respondents as Constable in the year 2010 and while working as such, his name was involved in one criminal case FIR No. 292/20 under Section 409 IPC, registered with Police Station, Prashant Vihar, Delhi. The applicant made a complaint to the concerned SHO on 13.11.2020 stating therein that his service pistol was snatched by certain persons. The SHO, Prashant Vihar, sent the said complaint dated 13.11.2020 of the applicant to the concerned DCP for seeking approval and to convert the aforesaid FIR No. 292/20 to Section 392/34. However, the requisite approval was not received from the DCP. Aggrieved by the said action of the respondents on his complaint dated 13.11.2020, the applicant approached the Court of Learned Magistrate having 4 Item No. 65 Court-2 OA No. 2809/2021 jurisdiction on the matter and in view of the order dated 26.07.2022 of the Learned Magistrate, FIR No. 0163 dated 19.04.2023 was registered with Police Station, Prashant Vihar, under Section 392/34 of IPC.
6. The reasons for the respondents passing the impugned order dated 26.11.2020 is apparent on a bare perusal of the same and accordingly for clarity, the relevant portion of the impugned order dated 26.11.2020 is reproduced hereunder:
"Whereas, SHO/PS Prashant Vihar, Delhi has sent a report vide No. 5735/SHO/Prashant Vihar, dated 13/11/2020 stating therein that on 12/11/2020 a criminal case vide FIR No. 292/20 U/S 409 IPC PS Prashant Vihar, Delhi has been registered against Constable Ram Khilari, No. 3066/RD on the complaint of HC Gurdeep, MHC(M) Govt. Property/Prashant Vihar, Delhi.
And whereas, on perusal of report filed by SHO/Prashant Vihar, it revealed that Constable Ram Khilari, No. 3066/RD was performing his duty as Beat Constable in Beat No. 9 (Sec.-10, Rohini). On 10/11/2020 at 10.00 AM a Service Pistol bearing No. 4780 and 10 live cartridges were issued to Constable Ram Khilari, No. 3066/RD from Malkhana, PS Prashant Vihar to perform his duty with the directions to deposit his pistol & cartridges after performing his duty. But, he failed to deposit the same back to Police Station after performing duty despite there being clear cut directions regarding this. The next day, on 11/11/2020, he consumed liquor while on duty and failed to secure the proper and safe custody of his Service Pistol along with 10 live cartridges issued to him by the MHC(M)/GP, resulting into registration of a case FIR No. 292/2020 U/S 409 5 Item No. 65 Court-2 OA No. 2809/2021 IPC, dated 12/11/2020 at PS Prashant Vihar, Delhi.
And whereas, Constable Ram Khilari, No. 3066/RD consumed liquor during duty hours, disobeyed directions of senior officers and put lives of many at risk. Prime facie the facts have revealed that the action of the Constable amounts to gross negligence, grave misconduct, irresponsibility and dereliction in the discharging of his official duties.
And whereas, Constable Ram Khilari, No. 3066/RD, being a member of disciplined force has indulged into such a shameful act, which has not only tarnished the image of police department in the society but also put a blot on the police force. He has acted in the most reprehensible manner, which is unexpected from the member of the disciplined force. His misconduct is such that if he is allowed to continue in the police force, it shall further tarnish the image of the Police force in society and will be detrimental to public interest. The act committed by Constable Ram Khilari, No. 3066/RD warrants an exemplary punishment and liable to be punished and warranted his dismissal from service under Article 311(2)(b) of the Constitution of India at first instance without following the procedure of regular departmental proceedings as the affected persons would not be in a position to depose against him.
And whereas, in order to send a clear message to such undesirable person and to prevent the recurrence of such an incident, it has become necessary to dismiss Constable Ram Khilari, No. 3066/RD from service. Assessing totality of the facts and circumstances of the case as mentioned above, I am of the firm view that the act of the accused Constable attracts the provisions of Article 311(2)(b) of the Constitution of India and makes him completely unfit for police service. The misconduct on the part of Constable Ram Khilari, No. 3066/RD is of such a grave nature that his further retention in the police service would be disastrous for the force and any leniency to him, will send a wrong message to the 6 Item No. 65 Court-2 OA No. 2809/2021 other police officials who are performing their duties with honesty and sincerity.
Hence, considering the above facts in totality, further retention of Constable Ram Khilari, No. 3066/RD in police force is undesirable and absolutely unwarranted. Therefore, I, P. K. Mishra, IPS, Deputy Commissioner of Police, Rohini District, Delhi, being competent authority, hereby dismiss Constable Ram Khilari, No. 3066/RD (PIS No. 28104689) from the Delhi Police Force under Article 311(2)(b) of the Constitution of India with immediate effect."
7. It is apparent on perusal of the aforesaid order that considering the report dated 13.11.2020 of the SHO, Police Station, Prashant Vihar, Delhi, the matter was considered by the competent authority and keeping in view the allegation made therein in the FIR and holding the applicant guilty of misconduct on account of disobedience of directions of his senior officers, the respondents have concluded that the applicant is guilty of gross negligence, irresponsibility and dereliction in discharge of his official duties. The Disciplinary Authority has given a categorical finding that the applicant has indulged himself into a shameful act which has not only tarnished the image of Police Department in the society, but also put a blot on the Police Force.
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8. From the aforesaid facts, the issue arises as to whether, if the applicant on the basis of some complaint and/or FIR was prima facie found to be negligent, irresponsible and performing an act of insubordination, could the respondents without making any efforts for conducting a regular inquiry, have straightaway resorted to the provisions of Article 311(2)(b) of the Constitution of India and dismiss the applicant from service or not ?
9. The issue is no more res integra in view of the latest order/judgment dated 22.04.2024 of a Division Bench of the Hon'ble High Court of Delhi in WP(C) No. 1258/2023 titled Commissioner of Police, Delhi Police & Ors. Vs. Manjeet. In the said Writ Petition, under challenge was order dated 19.10.2022 of this Tribunal in OA No. 742/2022 wherein the Tribunal has allowed the OA and set aside the order passed by the respondents dismissing the applicant from service without holding any inquiry and also the Appellate Order passed against him, of course with liberty to the respondents in the OA to initiate disciplinary proceedings against the applicant therein in the OA, in accordance with law. 8 Item No. 65 Court-2 OA No. 2809/2021
10. The Tribunal after considering various judgments of the Hon'ble Supreme Court, Hon'ble High Court(s) and also its own orders, has passed the order dated 19.10.2022, impugned before the Hon'ble High Court in the said Writ Petition.
11. The Hon'ble High Court after considering the relevant pleadings on record and submissions made on behalf of the parties, has dismissed the said Writ Petition and it has been held in Paragraph 7-14 as under:
"7. Having considered the submissions of the learned counsel for the parties and perused the record, we may begin by noting the relevant extracts of the impugned order, contained in paragraph nos. 9 to 11 thereof, which read as under:-
"9....We find that nothing has been recorded in the impugned order or shown to us that the applicant had ever threatened or harassed any of the witness(es) and/or the prospective witness(es) and further there is no evidence or document to indicate that in view of the facts and circumstances of the case, any efforts was made by them to summon the witness(es) to lead the evidence against the applicant or anything was found that on regular enquiry or by summoning the witness(es) the relation with foreign countries was likely to be adversely affected. In the impugned orders, the respondents have not disclosed that any effort was made by them to conduct the enquiry nor there is any evidence that in spite of their best efforts, they had not been able to produce the witness(es) to lead evidence against the applicant. 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 9 Item No. 65 Court-2 OA No. 2809/2021 departmental enquiry against the applicant and there being a possibility that witness(es) may not come forward to depose against the applicant. The same is the position when the appellate authority rejected the appeal of the applicant. Such acts/orders of the respondents are not only in violation of the settled law but also of their own aforesaid instructions/circulars dated 29.11.1993, 08.11.1993 and 11.09.2007. Hence, we are of the considered view that reasons given by the respondents for dispensing with the enquiry are not in consonance with the law settled by the Hon'ble Supreme Court and Hon'ble High Courts and followed by this Tribunal in a catena of cases, a few of which cases are referred to hereinabove.
10. It cannot be in dispute that there must be zero tolerance towards corruption and misconduct in public service. However, without there being sufficient ground(s) to be recorded in writing, the protection given to the public servant of hearing under Article 311 of the Constitution cannot be taken away by the respondents. Our view is supported by the binding judicial precedents, referred to hereinabove.
11. Having regard to the aforesaid facts and circumstances of the present case, we are of the considered view that this case is squarely covered by the common Order/Judgment dated 10.2.2022 in Ct. Sumit Sharma (supra) and a batch of cases. Therefore, the present OA deserves to be partly allowed and the same is partly allowed with the following directions:-
(i) Orders dated 30.12.2020 (Annexure A/2) and 27.12.2021 (Annexure A/1) passed by the Disciplinary and Appellate authorities respectively are set aside with all consequential benefits to the applicant in accordance with the relevant rules and law on the subject;10 Item No. 65 Court-2 OA No. 2809/2021
(ii) The respondents shall implement the aforesaid direction within eight weeks of receipt of a copy of this order; and
(iii) However, the respondents shall be at liberty to initiate disciplinary proceedings against the applicant in accordance with the law."
8. From a perusal of the aforesaid, it appears that the learned Tribunal has allowed the original application not only by following its earlier decision dated 10.02.2022 in OA No. 1383/2020 titled Ct. Sumit Sharma v. Govt. of NCT of Delhi and Ors. but also after perusing the dismissal order dated 30.08.2019, from which, it clearly emerged that the reasons given by the petitioner for dispensing with the enquiry did not fall within the ambit of Article 311(2)(b) of the Constitution of India. Since, learned counsel for the petitioner has vehemently urged that there were sufficient reasons in the dismissal order for dispensing with the department enquiry, it would be apposite to note the reasons recorded in the order dated 30.12.2020 for dispensing with the enquiry. The relevant extract of the order dated 30.12.2020 reads as under:-
"Through the facts which emerged during the preliminary enquiry, it has been observed that the facts and circumstances of the case are so serious that it will not be reasonably practicable to conduct a regular departmental enquiry against the defaulter as there is a reasonable belief that the witnesses may not come forward to depose against him owing to his influential position. It also calls for great courage to depose against the official person and the task becomes more acute and difficult where the police personnel could use his job to influence the statement/deposition of the witnesses. It is also highly probable that during the entire process of departmental proceedings, the complainant and witnesses would be put under constant fear of threat to their person and property from the defaulter. Under these circumstances, I am personally satisfied that conducting a 11 Item No. 65 Court-2 OA No. 2809/2021 regular D.E. against the defaulter is not practicably possible. The criminal act of the defaulter has tarnished the image of Delhi Police and this action amount is gross misconduct and is highly unbecoming of a police officer.
After completing the Preliminary Enquiry into the matter, in compliance of the Circular issued from PHQ into the matter vide No. 5545-645/P. Cell/Vig. dated 11 09.2007, the enquiry report was forwarded to Spl.C.P/CZ, Delhi for seeking his concurrence to dismiss the defaulter under Article 311(2)(b) of the Constitution of India and the same has been approved by the competent authority:
Taking into account the totality of facts and circumstances of above mentioned case, it is amply clear that the defaulter committed the gravest act of misconduct which cannot be tolerated in any disciplined organization like: police whose basic duty is to protect the life and liberty of citizen in the society. He indulged himself in such abominable act which is not expected from a personnel of a uniformed force shameful act committed by him has not on tarnished the image of the price force brought disgrace to the organisation also demoralized other police officers/staff. It is a clear instance of a law enforcer turning into the law breaker and has thereby projected a very bad Image of Delhi Police in the eyes of the general public which shall tend to erode the faith in police department. Therefore, the undersigned is Satisfied that the act and grave misconduct of defaulter Ct. (Exe) Manjeet, No. 1360/NE attracts the provisions of Article 311(2)(D) of the Constitution of India and makes him completely unfit for police service.
Therefore, in order to maintain discipline ass to prevent recurrence of such an incident, it has become absolutely imperative to dismiss the defaulter as he is 12 Item No. 65 Court-2 OA No. 2809/2021 completely unfit for police service. Moreover, his further retention in the department after his involvement/arrest in the above mentioned case is absolutely detrimental to public interest.
Therefore, keeping in view the sensitivity of the matter, I, Ved Prakash Surya, IPS, Deputy Commissioner of Police, NorthEast District, Delhi, hereby order to dismiss defaulter Ct. (Exe.) Manjeet, No. 1360/NE (PIS No. 28182203) from Delhi Police under Article 311(2)(b) of the Constitution of India with immediate effect. His suspension period from 28.11.2020 to till the issue of this order is also decided as period not spent on duty for all Intents and purposes and the same will not be regularized in any manner."
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.
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10. We have also considered the decision in Dushyant Kumar (Supra) and find that in the said case, this Court had rejected a similar challenge by the petitioners to the Tribunal's quashing of a dismissal order passed after dispensing with the enquiry. In fact, this Court after considering the circulars dated 21.12.1993 and 11.09.2007 issued by the petitioners themselves, observed that despite there being a requirement to record cogent reasons to dispense with the enquiry, the petitioners were passing cryptic orders dispensing with the enquiry in the most mechanical manner.
11. No doubt, the respondent is a police personnel and any misconduct on his part is liable to be dealt with appropriately. This, however, does not imply that the petitioners could, on the basis of the gravity of the charges levelled against him, with an enquiry on absolutely vague grounds. As noted hereinabove, the petitioners have given no reason whatsoever in the impugned order for dispensing with the inquiry. The impugned order of dismissal proceeds on the basis that the respondent's guilt had already been proved in the preliminary enquiry. Furthermore, it is not as if the respondent has been let off without any departmental action being taken against him, as the learned Tribunal has already granted time to the petitioners to initiate departmental proceedings against him as per law.
12. For the aforesaid reasons, we find no reason to interfere with the impugned order. The writ petition being meritless is dismissed along with all applications.
13. Before we conclude, we are constrained to observe that in a large number of petitions filed by the Commissioner of Police which are coming up before this Court, we are finding termination orders are being passed by the petitioners by dispensing with departmental enquiries in a most mechanical manner without recording any valid reasons. We, therefore, direct that a copy of this order be placed before the Commissioner, Delhi Police to ensure that in future, enquiries are not dispensed with without assigning justifiable reasons.
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14. A copy of this order be forwarded to the Commissioner of Police, Delhi, for information."
12. It is admitted fact that while passing the impugned orders, the respondents have not taken into consideration the complaint made by the applicant which was referred to by the SHO for converting the aforesaid case FIR to Section 392/34. But the same complaint has subsequently been registered as FIR under Section 392/34 referred to hereinabove, in the year 2023. Further, it is apparent that before passing the impugned orders, the respondents have not even made any attempt to see as to whether a regular departmental inquiry was possible or not. The reason if at all, for not holding any regular inquiry, given in the impugned order is that the applicant was found involved in some serious case which the respondents have found very shameful for the image of the department.
13. We also find that none of the grounds urged by the applicant in the statutory appeal has been considered by the Appellate Authority and the Appellate Order has been passed in a mechanical manner.
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14. In the light of the aforesaid, we are of the considered view that the OA deserves to be allowed and the same is allowed with the following order(s):-
(i) impugned orders dated 26.11.2020 and 05.07.2021 are set aside. The applicant shall be reinstated in service forthwith.
(ii) the applicant 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 four 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 applicant if they are so advised, of course in accordance with rules and instructions on the subject.
15. However, in the facts and circumstances of the case, there shall be no order as to costs.
(Sanjeeva Kumar) (R.N. Singh)
Member (A) Member (J)
/NS/