Central Administrative Tribunal - Delhi
Manoj Kumar vs Comm. Of Police on 11 April, 2022
1 O.A. No.2336/2018 and 2829/2019
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No.2336
2336 of 2018
And
O.A. No.2829 of 2019
Orders reserved on : 31.3.2022
Orders pronounced on ::11.4.2022
.2022
Hon'ble Mr. A.K. Bishnoi, Member (A)
Hon'ble Mr. R.N. Singh, Member (J)
O.A. No.2336
No of 2018
Manoj Kumar
S/o Sh. Padam Singh,
Aged about 29 years,
R/o Village-Dalelgarh,
Village
RP- Bilaspur,
Dist. - Gautam Budh Nagar,
Uttar Pradesh,
Ex-Constable
Constable No.4507/T
... Applicant
(through Advocate Shri Mayank Kaushik for Shri M.P.
Sinha)
Versus
1. Delhi Police,
Police Head Quarter
I.P. Estate, Delhi
Through Commissioner of Police
2 O.A. No.2336/2018 and 2829/2019
2. DCP,
Traffic - Outer Range,
Delhi.
... Respondents
(through Advocate Shri Amit Anand)
O.A. No.2829 of 2019
Khushi Ram
Ex Constable (Ex.) of Delhi Police,
PIS No.28108978
Aged about 31 years
S/o Sh Mahavir Singh
R/o Vill : Nangal, PO : Bawania,
Mahendergarh, Haryana.
... Applicant
(through Advocate Shri Anil Singal)
Versus
1. Delhi Police
Through Commissioner of Police,
PHQ, IP Estate, New Delhi.
2. Joint C.P. (Licensing)
PHQ, IP Estate, New Delhi.
3. DCP (Licensing Unit)
PHQ, IP Estate, New Delhi.
... Respondents
(through Advocate Shri Amit Anand)
3 O.A. No.2336/2018 and 2829/2019
ORDER
Hon'ble Mr. R.N. Singh, Member (J) :
The applicants, in the aforesaid two Original Applications, have approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985, to challenge the order(s) passed by the Disciplinary Authorities dismissing them from service by invoking their power under Article 311(2)(b) of the Constitution of India. The applicants have also challenged in their respective OAs the orders passed by the Appellate Authorities rejecting their representation(s)/statutory appeal(s) against order(s) of the Disciplinary Authorities. The applicants have prayed for setting aside of the impugned order(s) passed by the Disciplinary and Appellate Authorities and have prayed for their reinstatement in service with all consequential benefits.
2. The facts of the present Original Applications are similar and common grounds have been urged by the learned counsels for the parties in support and against the present Original Applications. In this background, with the consent of the learned counsels for the parties, both the aforesaid Original Applications have been heard 4 O.A. No.2336/2018 and 2829/2019 together and are being decided by the present common Order/Judgment.
3. The applicants had been appointed and working under the respondents.
4. In OA No.2336 of 2018, the applicant was appointed as a Constable in the year 2010 and since then, he had been working under the respondents as such. However, on the basis of a complaint of one Shri Subhash Pahuja, an FIR No.496/2016 with P.S. Adarsh Nagar dated 23.11.2016 under Section 389/120-B of IPC had been registered against the applicant and two other co- delinquents. Pursuant to the said case FIR, an inquiry was conducted by respondent no.2 and taking into consideration the said report, the Disciplinary Authority by invoking the power under Article 311(2)(b) of the Constitution of India had passed the impugned order dated 23.11.2016 (Annexure A1) dismissing the applicant from service and on a statutory appeals preferred by the applicant and other two co-delinquents, the Appellate Authority has rejected the applicant's said appeal vide order dated 13.10.2017 (Annexure A2). Aggrieved by the impugned orders dated 23.11.2016 and 13.10.2017, the 5 O.A. No.2336/2018 and 2829/2019 applicant has approached this Tribunal by way of the OA No.2336/2018.
5. In OA No.2829 of 2019, the applicant while working as a Constable in Delhi Police was involved in a case FIR No.105/18 under Sections 409/420/468/471/201/120-B of IPC, which was registered on 14.5.2018 at P.S. POW, Delhi and vide Arrest Memo dated 18.6.2018, the applicant was arrested. Keeping in view the aforesaid, the Disciplinary Authority by invoking the power under Article 311(2)(b) of the Constitution of India had passed the impugned order dated 25.6.2018 (Annexure A-1) dismissing the applicant from service and on a statutory appeal preferred by the applicant, the Appellate Authority has rejected the same vide order dated 28.8.2019 (Annexure A-2). Aggrieved by the impugned orders dated 18.6.2018 and 28.8.2019, the applicant has approached this Tribunal by way of the OA No.2829/2019.
6. Pursuant to the notices, the respondents have filed their counter replies. The applicants have filed rejoinders.
7. We have heard the learned counsels for the parties and perused the pleadings on record.
6 O.A. No.2336/2018 and 2829/2019
8. The facts and reasons for passing the impugned disciplinary order(s) are evident from the Disciplinary Authority's order(s) in both these cases. A few paragraphs of the impugned order dated 23.11.2016 in the case of Manoj Kumar (supra) read as under:-
"On 22.11.2016, one Subhash Pahuja S/O Bodhraj Pahuja R/O B2B/301, Janak Puri, Delhi and having a shop in the name and style of Krishna Bhandhar, Choti Subzi Mandi, Janak Puri, reported that he was coming from Mukarba Chowk towards Wazir Pur by his own car UK07BM-4624. At about 5 PM while, he was near Metro Station Adarsh Nagar some traffic police personnel signalled to stop his car. One of the traffic police personnel told him that his car is having tinted glassed and he, accordingly, challaned his car for tinted glass and also advised him to remove the tinted glass. While Subhash Pahuja was taking out cash from the dashboard of his car to pay for the challan, the two traffic constables noticed the cash kept in the dashboard. The two traffic personnel namely Pradeep and Manoj came and sat inside the car of Subhash Pahuja. The bag was containing a sum of approx Rs. 120000/-, from the cash sale for the last few days from his shop. Inspecting the cash both constables threatened the complainant with Imprisonment and to seize his car. A Head Constable later identified as HC Suresh also came to the car. The three of them discussed and the Head Constable instructed the two constables to take the complainant away from the spot. Both the constables then boarded the car and made the complainant drive the vehicle here and there purposelessly. The two constables took the mobile phone belonging to Subhash Pahuja, the complainant, and 7 O.A. No.2336/2018 and 2829/2019 removed the SIM cards from the mobile phone. The complainant further stated that he told the two constables that the money kept in the dashboard is his bonafide possession acquired from the sale in his shop and was being carried for the marriage of his nephew. The complainant stated further that he requested the two constables to allow him to inform his family or else they will be worried. But the constables did not pay any heed to his requests and kept on threatening him on the pretext that he was in possession of old and disbanded currency notes which call for imprisonment for seven years and seizure of car. Both the constables made him drive through the roads of Delhi and when they reach near Vikas Minar Vikas Marg, Delhi, they took the money amounting to Rs.100000/- and got off the car and disappeared. The complainant was also threatened of dire consequences in case he chose to report the matter to police. The complainant has stated that he somehow reached his home and narrated the Incident with his family members. The complainant again went back to the place from where he was taken in the car i.e. Metro Station Adarsh Nagar with his relatives. The complainant alongwith his relatives again met the three traffic police personnel identified as HC (Exe) Suresh, No.919/T (PIS NO.28011557),Const (Exe) Prodeep,No.2943/T (PIS No.28100689) and Const (Exe) Manoj, No.4504/T (PIS No29101784) and showed them the marriage invitation card and persuaded them to return the money taken by them from the complainant or else they will have to report the matter to local police and senior officers. The traffic police personnel asked them to come to Azad Pur chowk and there they returned the money after a lot of persuasion. The complainant stated that he and his family thought about the Incident and have decided to report the matter to senior officers.
On receipt of this complaint, and keeping in view the gravity of the offence, it was found 8 O.A. No.2336/2018 and 2829/2019 prudent to conduct an enquiry in to the entire Incident. A preliminary enquiry was, therefore, conducted. During enquiry complainant was also questioned at length. The statement of TI/NTC Inspr Vilay Pal and ZO/SI Rajender Singh were recorded. Through the deposition of the complainant during the enquiry and by the statement of the TI/MTC end ZO/SI Rajender Singh, it has been established beyond any doubt that the three traffic police personnel i.e. HC (Exe) Suresh, No.919/T(PIS No.28011557), Const(Exe) Pradeep, No.2943/T (PIS No.28100689) and Const (Exe) Manoj, No.4504/T(PIS No.29101784) have intentionally conspired and detained the complainant and extorted a sum of Rs.100000/- from him on the false pretext of prosecution/imprisonment under frivolous sections of law, yet he is least likely to come forward to depose during the formal department enquiry. The enquiry has revealed that the three H (Exe) Suresh. No.919/T (PIS No.28011557), Const (Exe) Pradeep, No.2943/T (PIS No.28100659) end Const (Exe) Manoj, NO.4504/T (PIS No. 29101784 ) have violated all the norms, ethics and morality by indulging hem into such grave offence of extortion. They have tarnished the image of police department among the society. They have lowered the image and goodwill of uniformed organization which is not acceptable from any police officer whose prime duty/responsibility is to protect the common citizen and safeguard the spirit of law. Their criminal conduct has caused irreparable damage to the image of Delhi Police. From the enquiry it is clear that all the above mentioned three defaulters, instead of being protector against crime had turned into being perpetrator of crime. Such conduct is detrimental to the morale and image of the disciplined force such as Delhi Police.
After having committed this gravest misconduct in the present case, if the defaulter HC (Exe) Suresh, No.919/T (PIS No. 28011557), Const (Exe) Pradeep, No.2943/T (PIS No. 28100689) and Const (Exe) Manoj, No.4504/T (PIS No. 29101784) are allowed to continue in 9 O.A. No.2336/2018 and 2829/2019 the police force, it would be detrimental to public interest and further lower the image of police force in the society. The facts and circumstances of the case are such that it would be reasonably impractical to conduct regular department and against the defaulter HC (Exe) Suresh, No.919/T(PIS No. 28011557), Const (Exe) Pradeep, No. 2943/T (PIS No. 28100689) and Const (Exe) Manoj, No. 4504/T (PIS No.29101784) as there is reasonable belief that the witness may not come forward to depose against them. It is common experience that due to influencing position of the delinquents, witnesses and complainants do not come forward to depose against the delinquents in the departmental enquiry. It also calls for great courage to depose against desperate persons and the task become more acute and difficult where the delinquents are police official who may use their job to influence the statement/deposition of the witnesses. Further, an extended enquiry would only cause more trauma to the victim. As such defaulters deserve an exemplary punishment in the matter.
Under the given set of compelling circumstance, the article 311 (2) (B) of Constitution of India has been invoked in this case for the sake of justice. HC (Exe) Suresh, No.919/T (PIS No. 28011557), Const (Exe) Pradeep, No.2943/T (PIS No. 28100689) and Const (Exe) Manoj, No. 4504/T (PIS No. 29101784) have become a liability to the department and should be dismissed. It would be in public interest as well as for the establishment of rules of law which expected by public at large.
Therefore, I, Vijay Singh, IPS, Deputy Commissioner of Police, Traffic-Outer Range, Delhi do hereby order to dismiss the defaulters HC (Exe) Suresh, No.919/T (PIS No. 28011557), Const (Exe) Pradeep, No.2943/T (PIS No.28100689) and Const (Exe) Manoj, No. 4504/T (PIS No. 29101784) from the service with immediate effect under Article 311 (2) (B) of Constitution of India."
10 O.A. No.2336/2018 and 2829/2019
9. Similarly a few paragraphs of the impugned order passed by the disciplinary authority in the case of Khushi Ram (supra) read as under:-
"Whereas, Inspr. Satya Prakash, Section- IV/EOW, Mandir Marg investigating the case FIR No. 105/18, dated 14.05.2018 U/s 409/420/467/468/471/201/120-B, 66 I.T. Act, P.S. EOW, Delhi informed on 18.06.2018 regarding the arrest of Const. Khushi Ram, No.114/Lic (PIS No.28108978) posted at Licensing Unit, alleging misappropriation of Govt. funds, valuable securities during the course of business transactions at the time of grant of various services like renewal of Arms Licences etc. Whereas, the accused bye-passed the system of payments by tampering with the computer system and thus generated computer generated fake receipts fraudulently on the existing system for unauthorized collection of fee in such cases. Whereas, the money collected during delivery of such services were not deposited in the Govt.
account and the same was
misappropriated/embezzlled. Further, official
documents i.e. folders, renewal forms contained therein and fee receipt were deliberately removed from the Record Room thereby leading to destruction of evidence by removal of incriminating documents from the files.
The above criminal act on the part of Const. Khushi Ram, No.114/Lic (PIS No.28108078) is highly abhorrent on his part, being a member of the police force. It is the first and foremost duty of a policeman to protect the life and property of the citizen as well as Govt. The misappropriation of government funds is tantamount to a depraved behavior and extremely poor integrity both of which are a sine quo non of a professional police officer. The act of Const. Khushi Ram, No. 114/Lic (PIS No. 28108978) has not only tarnished the image of Delhi Police but has badly shattered the faith of common man in the police. His continuation in the police force is likely to create a 11 O.A. No.2336/2018 and 2829/2019 negative liability for the functioning and credibility of the department. The misconduct and active criminal involvement of Const. Khushi Ram, No. 114/Lic (PIS No. 28108978) has been established during investigation of this serious criminal case involving moral turpitude. Whereas, he committed the crime while on duty and further violated the oath which every Police officer takes before joining the police force. As such, his act is beyond pardonable capacity of any authority bound by orals and conduct rules. His services are no more desirable in Delhi Police and he needs to be dismissed immediately for the aforesaid reasons. Therefore, Const. Khushi Ram, No.114/Lic (PIS No.28108978) has been established during investigation of this serious criminal case involving moral turpitude. Whereas, he committed the crime while on duty and further violated the oath which every Police officer takes before joining the police force. As such, his act is beyond pardonable capacity of any authority bound by morals and conduct rules. His services are no more desirable in Delhi Police and he needs to be dismissed immediately for the aforesaid reasons. Therefore, Const. Khushi Ram, No.114/Lic (PIS No.28108978) deserve exemplary punishment i.e. dismissal from the police force with immediate effect under article 311(2) (b) of the Constitution of India at the first instance without following the procedure of regular departmental proceedings. Whereas, interrogation to ascertain the source of forged Fee Receipt recovery of the misappropriated funds collected against forged receipts and unearth the conspiracy batched for the commission of the above said offence need complex investigations, beyond the scope of administrative enquiry. The purpose for fact finding is really not needed as case FIR No.105/18, dated 14.05.2018 U/s 409/420/467/468/471/201/120-B, 66 I.T. Act, P.S. EOW, Delhi, makes the sequence of events and act of the complicit accused Const. Khushi Ram, No. 114/Lic (PIS No. 28108978), very evident and prima-facie establishes his criminal mind and conduct, further buttressed by his arrest on merit by a specialized investigation agency. Whereas, holding of the departmental proceedings will be inimical to speedy justice due 12 O.A. No.2336/2018 and 2829/2019 to likely possible intimidation and threats to those who may depose against him during investigation and trial and possible affiliation of material witnesses to the accused Const. Whereas, his continuation in the force may hamper the integrity of the investigation of a sensitive nature. Whereas, in view of the enormity of transactions involved over a long period and large number of possible material witnesses, it may not be practically to conduct a speedy departmental enquiry in a reasonable time frame.
Keeping in view the overall facts and circumstances of the case, I, Asif Mohd. Ali, DCP Lic, Delhi do hereby DISMISS defaulter Const. Khushi Ram, No.114/Lic (PIS No.28108978) from service with immediate effect under article 311(2)
(b) of constitution of India. Const. Khushi Ram, No. 114/Lic (PIS No.28108978) was arrested on 18.06.2018. His period from the date of his arrest till the issue of this order is also decided as period "not spent on duty" for all intents and purpose."
10. Shri Kaushik, learned counsel for the applicant in OA 2829/2019, has submitted that the applicant had been dismissed by the respondents without issuing any show cause notice or conducting any enquiry on unauthenticated allegations leveled against the applicant vide the said FIR. Learned counsel for the applicant has drawn our attention on the impugned order passed by the disciplinary authority and has contended that how could the respondents believe the versions of the complainant in totality when his own version does not inspire any confidence, as he had alleged that the amount of 13 O.A. No.2336/2018 and 2829/2019 Rs.1,20,000/- was out of the sale proceeds of his shop of the last week and Rs.1 lakh was of Rs.500 currency notes and the old currency notes had been withdrawn by the Government w.e.f. 08.11.2016. Learned counsel has further submitted that the respondents have invoked the provisions of Article 311 (2)(b) of the Constitution of India just to get rid of the enquiry and giving opportunity to the applicant to refute the allegations and the factual situation of the present case did not warrant such invoking of the stringent provision. Besides other grounds as mentioned in the OA, the learned counsel for the applicant has submitted that the instant case is squarely covered by many other decisions of this Hon'ble Tribunal and particularly OA No.233/2018, titled Rajesh Kumar vs. Commissioner of Police and others, decided on 9.10.2018 and OA No.1114/2018, titled Tara Dutt vs. Govt. of NCT and others, decided on 17.6.2021.
11. Shri Singal, learned counsel appearing for the applicant in OA No.2336/2018, has submitted that the applicant was falsely implicated in the said case FIR in which charge-sheet has already been filed in the court of competent jurisdiction and as such there was no question 14 O.A. No.2336/2018 and 2829/2019 of invoking the provisions of Article 311(2)(b) of the Constitution of India. He has further argued that sole reason for dispensing with the inquiry is that the department's case against the applicant is very weak and will fail and further that the disciplinary authority had never tried to hold a departmental enquiry on the said allegations/misconduct against the applicant as mentioned in the aforesaid impugned order on the basic of which the applicant was dismissed by invoking the provisions of Article 311(2)(b) of the Constitution of India without any evidence as to how the holding of departmental inquiry is not practicably possible which is the condition precedent for invoking the powers under the said Article. Shri Singal has further submitted that dispensing of the enquiry for even non-deposition of witness(es) due to fear was held to be illegal by the Hon'ble Supreme Court in the case of Chief Security Officer vs. Singasan Rabidas, reported in 1991 (5) J.T. 117. Shri Singal, learned counsel, has further submitted that the impugned orders are in clear violation of the respondents' own circular dated 29.12.1993 and reissued on 31.12.1998, which categorically provides that the powers under Article 311 (2)(b) is not to be used as a short-cut and instructions 15 O.A. No.2336/2018 and 2829/2019 contained in the said circular has to be strictly followed, which has not been done by the respondents in the instant case, as there is no proof on record to say that the applicant is in a position to influence the witnesses and further there is no reason given by the respondents that when the same witnesses can appear before the learned Trial Court to depose against the applicant and as to why they will not appear in the departmental inquiry. Rather the disciplinary and the appellate authorities have passed the impugned orders without application of mind to the conditions as contained in the aforesaid OM. In support of the claim of the applicant, Shri Singal, learned counsel has referred to and relied upon the following judgments :-
(i) Judgment of the Hon'ble Supreme Court in the case of Civil Appeal No.9334/2010, titled Union of India and others vs. Ram Bahadur Yadav, dated 26.11.2021;
(ii) Order/Judgment of the Hon'ble High Court of Delhi in W.P. (C) No.11694/2018, titled Commissioner of Police and others vs. Kaushal Singh, dated 19.5.019.
16 O.A. No.2336/2018 and 2829/2019
(iii) Order/Judgment of this Tribunal in OA No.2097/2019, titled Neeraj Kumar vs. Commissioner of Police and another, dated 1.11.2019;
(iv) Order/Judgment of this Tribunal in OA No.702/2019, titled Dharmender Singh Dangi vs. Govt. of NCTD and others, dated 1.1.2021; &
(v) Order/Judgment of this Tribunal in OA No.1912/2015, titled Kripal Singh vs. Govt. of NCT of Delhi and others, dated 11.3.2021.
12. Shri Amit Anand, learned counsel appearing for the respondents in both the cases has submitted that so far as OA 2336/2018 is concerned, it is evident from the impugned order, contents of which are quoted above, that before passing the dismissal order under Article 311 (2)(b) of the Constitution of India, an enquiry was got conducted into the incident which took taken place on 22.11.2016 near Metro Station Adarsh Nagar with the complainant in which the inquiry officer prima facie proved the allegations leveled against the applicant and other two co-delinquents that they including applicant intentionally conspired and 17 O.A. No.2336/2018 and 2829/2019 detained the complainant and extorted a sum of Rs.1,00,000/- from the complainant Shri Subhash Pahuja on the false pretext of prosecution/imprisonment under frivolous sections of law. The complainant in his complaint given to the local police of PS Adarsh Nagar specifically mentioned that the applicant and his co-defaulters returned the extorted money which was brought on record as case property through seizure memo by the IO of the case. The return of extorted money by them to the complainant is itself an admission of guilt. Learned counsel has further submitted that it is common experience that due to influencing position of the applicant and his co-defaulters, if retained in service further, witnesses and complainants do not come forward to depose against them in the departmental inquiry. Learned counsel for the respondents has further submitted that the gravity of the misconduct prima facie proved against the applicant and his co-delinquents attracts exemplary penalty. Hence, the applicant and his co-delinquents were rightly dismissed from service under Article 311(2)(b) of the Constitution of India. Further the appeal preferred by the applicant was duly considered and 18 O.A. No.2336/2018 and 2829/2019 the same was rejected by passing a reasoned and speaking order by the appellate authority.
13. Shri Anand, learned counsel for the respondents has further submitted that so far as OA No.2829/2019 is concerned, from the contents of the impugned order of the disciplinary authority, as quoted above, it is evident and prima facie establishes the applicant's criminal mind and conduct, further buttressed by his arrest by a specialized investigation agency, holding of the departmental proceedings will be inimical to speedy justice due to possible intimidation and threats to those who may depose against him during investigation and trial and possible affiliation of material witnesses to the accused, his continuation in the force may hamper the integrity of a disciplined force and in view of the enormity of transactions involved over a long period and large number of possible material witnesses, it may not be practically feasible to conduct a speedy departmental inquiry in a reasonable time frame. Hence, the orders passed by the disciplinary and appellate authorities are apt in law and no interference in the matter is warranted from this Tribunal.
19 O.A. No.2336/2018 and 2829/2019
14. In rebuttal to the submissions of learned counsel for the respondents, Shri Singal, learned counsel for the applicant in OA No.2336/2018 has submitted that recently the same Division Bench in a batch of cases, OA No.1383/2020 and others, titled Ct. Sumit Sharma vs. Govt. of NCT of Delhi and others, etc., decided on 10.2.2022 has considered identical issues and arguments as advanced by the learned counsels for the parties in the instant cases and after considering a catena of judgments of the Hon'ble Supreme Court and Hon'ble High Court(s) and the Tribunal, this Tribunal allowed the said OAs partly with directions to the respondents. Lastly, learned counsels for the applicants have submitted that both the OAs may be allowed partly on the same terms.
15. We have considered the submissions of the learned counsels for the parties and have carefully gone through the pleading on record as well as the case law cited by the learned counsels for the applicants.
16. On perusal of the impugned order(s) and precise facts, as recorded there from and derived from the pleadings on record, the following facts are evident:- 20 O.A. No.2336/2018 and 2829/2019
(i) The applicants have been working as Police official(s) under the respondents and while working as such complaints were received against them resulting into lodging of FIR(s) on receipt of complaint(s)/registration of FIR(s), preliminary inquiry/investigation was conducted;
(ii) Chargesheet(s) has/have been filed by the respondents in both the said FIR(s) before the concerned learned Court(s);
(iii) The reason for dispensing with the Departmental Enquiry is that violation of all the norms, ethics and morality by indulging into such grave office of extortion, tarnished the image of the police department in the society, witnesses may not come forward to depose against the applicant, possibility of witnesses or public may be unduly harassed by the applicant(s) due to influencing position of the delinquent(s); gravity of the charges leveled against the applicant(s); commission of grave offence(s);
misconduct being extremely dangerous; threat to the discipline, integrity and morality of the police force; unscrupulous and illegal activities, embezzlement of Govt. funds etc. 21 O.A. No.2336/2018 and 2829/2019
17. After considering the relevant material on the subject, including circulars dated 21.3.1993 and 11.9.2007 issued by the respondents, and case law, this very Division Bench has considered the similar issue while deciding a batch of cases, OA No.1383/2020 and others, titled Ct. Sumit Sharma vs. Govt. of NCT of Delhi and others, etc., vide common Order/Judgment dated 10.2.2022, paras 31, 32 and 45 to 47 read as under:-
"31. It is not that the issue of invoking the provisions of Article 311(2)(b) of the Constitution of India came for consideration before the Hon'ble Apex Court in the aforesaid cases or any other cases before other Court(s) and/or Tribunal(s) only but the same had attracted the attention of the respondents themselves as well and the respondents have themselves emphasized that the Disciplinary Authority should not take resort to Article 311(2)(b) of the Constitution of India lightly but only in those cases where it is not reasonably practicable to hold the inquiry. The same is evident from the circular dated 21.12.1993 (Annexure A/10 to OA 467/2020) of the respondents, which reads as under:-
"The Police Officers involved in the case of rape or dacoity or any such heinous offence have been dismissed straightway under Article 311(2)(b) despite the fact that criminal cases have been registered. Such dismissals without holding D.Es are illegal because in such cases D.E. can be conveniently held.
It is, once again emphasized that the Disciplinary Authority should not take resort to Article 311(2)(b) lightly but 22 O.A. No.2336/2018 and 2829/2019 only in those cases where it is not reasonably practicable to hold the enquiry. Whenever the disciplinary authority comes to the conclusion that it is not reasonably practicable to hold an enquiry he must record at length cogent and legally tenable reasons for coming to such conclusion. In the absence of valid reasons, duly reduced in writing, no such order of dismissal etc. with resort to Article 311(2)(b) can be sustainable in law."
32. The issue regarding application of the provisions of Article 311(2)(b) of the Constitution of India came before the Hon'ble Apex Court in various cases and the law stands settled by the Apex Court in the Constitution Bench decision in Tulsiram Patel (supra), the similar issue came before the Hon'ble Apex Court, the Hon'ble High Court(s) and the Tribunal(s) in many cases thereafter and after considering the issue at length, this Tribunal had made observation as in para 20 of the Order/Judgment dated 5.6.2007 in the case of Suresh Kumar (supra), noted in paragraph 16 hereinabove. The issue of termination/dismissal of the services of various employees attracted the attention of the respondents themselves. The respondents, after considering the provisions of Article 311(2)(b) of the Constitution of India and the judgment of the Hon'ble Apex Court in the case of Tulsiram Patel (supra) and the Order(s)/Judgment(s) passed by this Tribunal have issued another circular dated 11.9.2007 (Annexure A/13 of the rejoinder filed in OA 467/2020). In the said circular, they have emphasized that the disciplinary authority should pass a speaking order(s) based and supported by material/facts on record for dispensing with prior inquiry and before passing such order(s), the disciplinary authority should be satisfied that it is not 23 O.A. No.2336/2018 and 2829/2019 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. 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 24 O.A. No.2336/2018 and 2829/2019 of such a nature that it is not practicable to hold an enquiry in view of threat, inducement, intimidation, affiliation with criminals etc. and keeping in view of specific circumstances of the case it is not possible that PWs will depose against the defaulter and disciplinary authority has no option but to resort to Article 311 (2) (b) should such an action be taken.
Prior to such an order, a PE has to be conducted and it is essential to bring on record all such facts. It has also been decided that before passing on order under Article 311 (2) (b) of the Constitution of India, Disciplinary Authority has to take prior concurrence of Spl. CP/Admn.
This has the approval of C.P., Delhi.
Sd/-
(S.N. SRIVASTAVA) JT. COMMISSIONER OF POLICCE:
HDQRS,: DELHI""
"45. In the cases in hand, it is evident that in most of the cases preliminary inquiry had admittedly been done and regular enquiry had been dispensed with on the ground of possibility of witnesses likely to be unduly harassed or pressurized by the delinquent(s). In all the case FIRs, chargesheet had been filed, list of witnesses had been filed, a few witnesses had been examined or after tiral the accused(s) had been acquitted. In a few cases, the reason for dispensing with the enquiry had been given that the material had come on record to prove the criminal acts of the applicants. The reason had been also of threat to discipline, integrity and morality of the entire police force. On perusal of the impugned orders, it is evident that either the authorities have passed the orders of dispensing with the enquiry on jumping to the conclusion that delinquency or guilt of the 25 O.A. No.2336/2018 and 2829/2019 applicants as alleged in the case FIRs stood proved even without regular enquiry in the departmental proceedings or trial in the concerned learned court(s). In most of the cases, conclusion about delinquency and commission of the offence(s) by the applicant(s) had been arrived merely on the basis of the preliminary inquiry report/investigation conducted by them and a copy of which had not been provided to them. In none of the aforesaid cases, there was any evidence/material before the authorities as evident from the impugned orders nor as such had been brought before us, to indicate that the applicants were having terror in their area and/or were having link with the terrorist(s) and they were involved in any case of espionage. Nothing has been recorded in the order(s) or shown to us that the applicant(s) had ever threatened or harassed any of the witness(es) and/or the prospective witness(es). There is no evidence or document to indicate that in view of the facts and circumstances of the case(s), any efforts was made to summon the witness(es) to lead the evidence against the applicant(s) or anything was found that on regular enquiry or by summoning the witness(es) the relation with foreign countries was likely to be adversely affected. In the impugned order(s), the respondents have not disclosed that any effort was made by them to conduct the enquiry nor there is any evidence that in spite of their efforts, they had not been able to produce the witness(es) to lead evidence against the applicant(s). Rather the respondents have themselves filed the final challan(s) with a list of witness(es) before the concerned learned Court(s) and in a few cases, the accused(s) had been acquitted as well. In a few cases, witnesses have been examined before the concerned learned Court(s). Moreover, co-delinquent in the cases of Neeraj Kumar (supra) and Ramesh Kumar (supra), the similar impugned orders have been set 26 O.A. No.2336/2018 and 2829/2019 aside by the Tribunal and the orders of the Tribunal have also attained finality.
46. It is found that the authorities while passing the impugned orders have very casually come to the conclusion that it would not be possible to conduct the departmental enquiry against the delinquent(s) and there being a possibility that witness(es) may not come forward to depose against the applicant(s). Such acts/orders of the respondents are not only in violation of the settled law but also of their own aforesaid circulars dated 21.3.1993 and 11.9.2007 as well. Hence, we are of the considered view that reasons given by the respondents for dispensing with the enquiry are not in consonance with the law settled by the Hon'ble Supreme Court and Hon'ble High Courts and followed by this Tribunal in a catena of cases, a few of which cases are referred to hereinabove.
47. It cannot be in dispute that there must be zero tolerance towards corruption and misconduct in public service. However, without there being sufficient ground(s) to be recorded in writing, the protection given to the public servant of hearing under Article 311 of the Constitution cannot be taken away by the respondents. Our view is supported by the binding judicial precedents, referred to hereinabove."
18. Reliance placed by learned counsel for the applicant in OA 2829/2019 on other Orders/Judgments of Hon'ble Supreme Court, Hon'ble High Court of Delhi and of this Tribunal, referred to above, were also considered by this very Bench while deciding the case of Ct. Sumit Sharma (supra).
27 O.A. No.2336/2018 and 2829/2019
19. Further the Hon'ble Supreme Court vide recent judgment dated 26.11.2021 in Civil Appeal No.9334/2010, titled Union of India and others vs. Ram Bahadur Yadav, has also considered the similar issued and held as follows:-
"9. From a reading of the above said Rule, it is clear that to pass an order as disciplinary measure, by adopting special procedure in certain cases, Rule 161 itself mandates recording of reasons. The normal rule for conducting an inquiry is governed by Rules 132, 148 and 153 of the RPF Rules. If the Authorities invoke special procedure, unless they record reasons, as contemplated in the Rule itself, no order could 7 have been passed by invoking Rule 161. At no point of time, appellants have produced file to show that any reasons are recorded in such file also. It is a settled legal position that when Rules contemplate method and manner to adopt special procedure, it is mandatory on the part of the authorities to exercise such power by adhering to the Rule strictly. Dismissal of a regular member of Force, is a drastic measure. Rule 161, which prescribes dispensing with an inquiry and to pass order against a member of Force, cannot be invoked in a routine and mechanical manner, unless there are compelling and valid reasons. The dismissal order dated 22.10.1998 does not indicate any reason for dispensing with inquiry except stating that the respondent had colluded with the other Head Constable for theft of Non Judicial Stamp Papers. By merely repeating the language of the Rule in the order of dismissal, will not make the order valid one, unless valid and sufficient reasons are recorded to dispense with the inquiry. When 8 the Rule mandates recording of 28 O.A. No.2336/2018 and 2829/2019 reasons, the very order should disclose the reasons for dispensing with the inquiry. The argument of learned Senior Counsel for the appellants that if file contains reasons, same is sufficient to maintain the order, deserves rejection. When inquiry is not conducted, member of the Force is entitled to know the reasons for dispensing with inquiry before passing any order as a disciplinary measure. The respondent was only a Head Constable during the relevant point of time and he was not in powerful position, so as to say that he would have influenced or threatened the witnesses, had the inquiry was conducted. The very fact that they have conducted confidential inquiry, falsifies the stand of the appellants that it was not reasonably practicable to hold an inquiry. The words 'not reasonably practicable' as used in the Rule, are to be understood in a manner that in a given situation, ordinary and prudent man should come to conclusion that in such circumstances, it is not practicable. In the 9 present case, there appears no valid reason to dispense with inquiry and to invoke Rule 161 of the Rules. We are in agreement with the view taken by the High Court. In the case of Sahadeo Singh & Others v. Union of India & Others1, this Court has held that in the facts and circumstances of the said case, it was not reasonably practicable to hold a fair inquiry, as such, it was held to be justifiable on the facts of the case. Whether it is practicable or not to hold an inquiry, is a matter to be considered with reference to the facts of each case and nature of charge, etc.
10. In the judgment in the case of Tarsem Singh v. State of Punjab & Others2, this Court has categorically held that when the Authority is of the opinion that it is not reasonably practicable to hold inquiry, such finding shall be recorded on the subjective satisfaction by the authority, and same must be based on the objective criteria. In the aforesaid case, it is 29 O.A. No.2336/2018 and 2829/2019 further held that 10 reasons for dispensing with the inquiry must be supported by material."
20. In view of the aforesaid, we are of the considered view that the cases of the applicants in the present OAs are squarely covered by the Order/Judgment dated 10.2.2022 of this Tribunal in the case of Ct. Sumit Sharma (supra) as also of the Hon'ble Supreme Court's judgment dated 26.11.2021 in Civil Appeal No.9334/2010, titled Union of India and others vs. Ram Bahadur Yadav.
21. In view of the above facts and circumstances and for the reasons recorded hereinabove, the present OAs are partly allowed with the following directions:-
(i) Order(s) passed by the disciplinary and appellate authorities in the aforesaid OAs are set aside with all consequential benefits to the applicants in accordance with the relevant rules and law on the subject; and
(ii) However, the respondents shall be at liberty to initiate disciplinary proceedings against the applicant(s) in accordance with the law.30 O.A. No.2336/2018 and 2829/2019
22. In the facts and circumstances of the cases, there shall be no order as to costs.
23. Registry is directed to place a copy of this Order in another connected case.
(R.N. Singh) (A.K. Bishnoi) Member (J) Member (A) /ravi/